Moms Across America has received countless emails and phone calls asking for help to stop the aerial spraying of glyphosate and toxic weed killers on forest areas by utility and lumber companies. People from California, Oregon, Washington, and numerous other states were desperate for help and increasingly got sicker by the day. They pleaded, “There has to be some way we can stop this, right?” Unfortunately, we responded, the lawyers tell us you can only sue after you get sick if you have a huge amount of health issues. You must have proof of the chemical causing that symptom through peer-reviewed scientific studies. Unfortunately, these critical studies reportedly lag 17 years behind the widespread appearance of symptoms - so the proof the lawyers need that certain chemicals cause the exact problem people have is not available yet.
The photos in the article below are photographs by Bill Orr on Roan Mountain. He has thoroughly documented the decline of the endangered species.
We refer them to the lawyers we personally know and trust, hoping that eventually, one will say yes and can successfully litigate the case. We direct them to the informational flyers on our Materials Store and pray that someone, somewhere along the decision-making line, will read them or listen to reason and science. We hope that someone will eventually listen, but our faith is often hammered by massive, industry-funded PR campaigns and sneaky corporate tactics.
It’s tough to have faith when the system is set up for them and not for us.
We witnessed this first hand when my husband and I went to the US Federal Court in Asheville, NC, on June 14, 2021, and met with dedicated Moms Across America supporter and self-proclaimed Mountain Man Bill Orr. An inventor and scientist, Bill had taken on the role of a lawyer, representing himself, and was suing the EPA, French Broad Electric Utilities, US Forest Service, U.S. Fish and Wildlife, and the US Department of Interior. He sought a Temporary Restraining Order to stop the glyphosate herbicide spraying of his beloved Roan Mountain in the misty hills of the Appalachians. He stood with the government and utility company attorney on the other side - one man alone - before Judge Max Cogburn. Despite not being a lawyer, he spoke with confidence, clarity, and clear knowledge of the legal process.
He had also filed for a consultation- meaning the EPA needed to assess with the US Fish and Wildlife (this would take months or years) the impact of the spraying of the endangered species before any further spraying continued. He wanted the spraying to stop entirely, but he knew a delay alone would be a huge success. He and his wildlife “friends,” as he called them, were getting sick. Many endangered moths had died. The EPA itself admits that endangered species are of “incalculable value.” They have also admitted that glyphosate herbicides harm 93% of endangered species and 97% of their critical habitats.
The French Broad Electric company claimed they sprayed under power lines every 3-4 years. It had only been two years, and during that time Bill saw a massive die-off of incredible species such as the Luna moth. Other species that are endangered, bees, butterflies, and birds also drastically declined. He told Judge Cogburn that the previous spraying in the area was devastating enough to the endangered species, and a subsequent would probably wipe them out. The starkly white-haired and somber Judge immediately claimed that the court could not force the state or EPA to take action. Bill firmly reminded him that he could act under the Environmental Species Act. The Judge waved his hand and said, “I don’t know that I can do that.” I was confused. A Federal Judge doesn't know what he can do? I find this extremely hard to believe!
Bill argued that a Federal Judge could stop the spraying. He referred to Tennessee Valley v. Hill, where one man sued to stop the building of a $100 million dam project on a river. Hill had discovered an endangered snail in the affected area, sued, and the courts found in his, or shall I say, in the snail’s favor. The project ceased. So clearly, Judge Cogburn could and should act to protect the 11 documented endangered species on Roan Mountain.
Before the spraying, hundreds of moths 2-3 inches big used to cover his windows at dusk. After the spraying, there were none. Two years later, only two moths about 1 inch wide have visited his window.
French Broad's lawyer claimed that their spraying was justified because it was a different area. They sprayed each area every 3-4 years, but in rotation, so some sides (different sections) of the mountain could be sprayed every two years. Furthermore, they claimed that the spraying was not on Bill’s property, so he had no claim. However, bill pointed out that the herbicide evaporated and drifted on any side of the mountain and would collect in the mist and rain and affect other areas. Therefore, spraying anywhere on the mountain or nearby did affect him and the endangered species near him.
The EPA lawyer, Flanagan, spoke and claimed Bill’s filing was invalid because he had filed two years ago on the same issue, and that case had been dismissed with prejudice, meaning permanently shut down. Bill and the Judge agreed that this was new spraying in a different area, as the lawyer from the French Broad had just stated. But, the Judge was not inclined to issue the TRO because he stated the court did not have jurisdiction.
The Judge then did something I have not seen in court. He basically advised Bill to bring a serious lawsuit. He said that he thought that this case might soon be a TORT case (class action lawsuit) and that the government should consider the environmental damage. He stated that Roundup had been found to cause cancer in court, and the cases had won. He said very clearly that people “should not be spraying willy-nilly” because “that spraying may cause problems,” and “they should be careful.” He talked about SuperFund sites costing a lot of money to clean up. He mentioned a TORT case three or four times, so much so that Bill thanked the Judge for this counsel. The Judge quickly backtracked and said he was not his counsel; he stated that he thought this could be a TORT case. The judge was essentially saying his hands were tied. Bill thought the judge was passing the buck, and his frustration was palpable.
I had another feeling, however. I wondered if the Judge was warning French Broad. Of course, he would probably let them spray for another three days, as they said they needed to do, but his warning was pretty clear...you should stop, or you will have bigger problems.
The endangered species need is not sideways warning...they don’t need another three days of spraying. They could be dead and extinct forever tomorrow. Instead, they need the Judge to do what his job entitles him to do directly, apply the Endangered Species Act and stop spraying glyphosate herbicides on Roan Mountain immediately.
If the judge acted within his powers and was responsible for upholding the Endangered Species Act, it would be a landmark case for Roundup and Bayer and set a precedent. To halt the spray of glyphosate for utility maintenance would put possibly hundreds of millions of dollars of potential profit for Bayer on the line.
The time has come for this Judge to decide to rule either in favor of a utility company's convenience (they could use other alternatives, safer sprays) and Bayer’s profit or the incalculable value of endangered species.
This was a preliminary hearing, and more is yet to come. We will keep you updated.