A Poisoned Field: Farmworkers, Pesticide Exposure, and Tort Recovery in an Era of Regulatory Failure
75 Pages Posted: 18 Feb 2007 Last revised: 13 Dec 2016
Date Written: 2004
Agricultural exceptionalism and inconsistent regulatory enforcement continue to weaken workplace protections for farmworkers. Although empowered to promulgate pesticide safety regulations by the Federal Insecticide, Fungicide, and Rodenticide Act, the EPA has failed to reduce pesticide exposure among farmworkers, who experience the highest rate of chemical-related, occupational disease in the country. In the wake of this administrative breakdown, the article analyzes the most promising common law theories for compensating victims of pesticide exposure. After evaluating a number of tort claims, the article predicts that future pesticide litigation will be brought under a design defect products liability theory incorporating a risk-utility test. Preemption defenses and problems of proving causation are analyzed, as are the practical problems of litigating cases involving acute and chronic injuries. Despite the acknowledged limitations of tort actions, mounting liability may provide an incentive for employers and manufacturers to improve field protections, thereby raising occupational safety standards to a level that the administrative state has been unable to achieve.
Keywords: farmworker, pesticides, FIFRA, products liability, regulation, preemption, administrative law, environmental law, migrant workers, human rights, Mexico
JEL Classification: K13, K31, K32
Suggested Citation: Suggested Citation