With the growth of federal regulation in the last century, federal preemption of state law has been an evolving issue in the area of toxic torts litigation. The preemption doctrine occupies a particularly prominent place in the area of pesticide-related litigation as the judiciary has struggled to decide what, if any, tort claims are preempted by the Federal Insecticide Fungicide and Rodenticide Act of 1972 ("FIFRA "), the federal statute governing the sale and labeling of pesticides in the United States. In Etcheverry v. Tri-Ag Serv. Inc., 22 Cal. 4th 316, 93 Cal. Rptr2d 36 (2000), a case heard by the Supreme Court of California, the Environmental Protection Agency ("EPA") took the position that federal preemption of pesticide-related tort claims is largely improper under FIFRA. The EPA's advocacy represented a major departure from the U.S. government's long silence with regard to federal preemption of tort claims and struck a huge blow to the pesticide industries' future ability to use preemption effectively as a defense. Although the Supreme Court of California did not agree with the EPA's position in Etcheverry, a significant number of other recent courts have adopted the EPA's position, holding that FIFRA does not preempt most or any state tort claims. These court decisions indicate that judicial support for a broad view of federal preemption under FIFRA is eroding.

This article analyzes the history and considers the future of federal preemption of state tort claims pursuant to FIFRA. The article urges finally that the courts are not clear about the extent to which Congress intended to preempt common law tort claims pursuant to FIFRA; that FIFRA should be interpreted narrowly to provide for little federal preemption; and that, at the very least, Congress should clarify this issue.