Mootness and Monsanto

This might as well be an actual
slogan at SCOVLawBlog HQ.

By: Elizabeth Kruska

And here are summaries of the other two opinions from this week. Thanks to Delaney for sharing the workload this week. This spectacular teamwork here at SCOVLawBlog is worthy of one of those inspirational posters that were popular in the late 1990s and early 2000s. Or maybe one of the demotivational posters that became popular after. Knowing this blog and its authors, I’m going with the latter.

 

Let’s start with In re Appeal of H.D., 2025 VT 67. Six Seven! as the kids like to yell, but is now immediately not cool because the adults figured it out. Anyway, H.D. is a human person who had a legal issue as timely as 6-7 and by the time SCOV was able to address it, it was moot – just like adults figuring out a meme. 

 

Here’s what happened. Vermont created a system where a person could get 80 days per year of emergency housing paid for by the state. (This is 80 days except for December 1, 2025-March 31, 2026, also known as “winter;” you may have heard of this.) The fiscal year 2026 (July 1, 2025 – June 30, 2026) appropriation for this program began on July 1, 2025. H.D. needed emergency housing and sought to access her allocation of 80 days. DCF, which runs the housing program, tallied up the number of days she had available and counted against H.D. some days she had used in the prior fiscal year. She appealed to the Human Services Board, who looked at their calendar and understood how it worked, and held that H.D. was actually eligible for housing assistance at the time she applied. DCF appealed, and the appeal to SCOV was dismissed as being moot.

 

This opinion isn’t about the housing program or about when to start counting days, it’s about mootness. By the time SCOV was able to get to this, H.D. had used up her 80 days of eligibility. (To be fair, it appears SCOV did try to fast-track this appeal so it could be heard quickly.) H.D. also no longer needed to access emergency housing services at all. In short, if SCOV reversed, there’d be no remedy for H.D. because there isn’t an issue for her anymore. That gets to the heart of the mootness issue. Even though DCF argued this could be litigated again by different people with the same issue, SCOV declined to issue a broad ruling that would be applicable to others. SCOV felt issuing such a ruling would essentially be a declaratory judgment, and that would not be appropriate here. Since H.D.’s issue has been solved, there is no longer a live controversy, and the issue is moot.

 

+++

 

Zooming along, now we get to Amber Neddo, as Guardian and Next Friend to Z.N., C.B., & A.B., et al. v. Monsanto Company et al., 2025 VT 64. And here’s something we don’t see very often: a Federal Certified Question. 

 

Briefly, Plaintiff filed suit against Monsanto on behalf of her kids because they were exposed to toxic Monsanto-made chemicals at their school. She filed in federal court. There are only a couple ways the federal courts have jurisdiction in civil suits. One is if there’s a federal question (or more plainly, an alleged violation of a federal law). The other is diversity jurisdiction. That’s when the plaintiff and defendant are located in two different states, and the amount in controversy is over $75,000. This is boiled way down; jurisdiction can be complicated, so let’s leave it here.

 

So, this lands in federal court due to the locations of parties and amount in question. But one of the issues is a matter of Vermont state law. The federal court isn’t an expert in Vermont state law; that’s what SCOV is for. When there’s an issue of state law that seems unclear to the federal court, the federal court can certify a question or questions to the supreme court of the relevant state. To be clear, federal judges are generally pretty smart cookies, and often state statutes have either been interpreted by state courts or are clear enough on their face that there doesn’t need to be a question certified. But here there was a recently-amended statute, and reasonable people differed on its interpretation. 

 

The first question was essentially, “what does the word ‘released’ mean?” Plaintiffs argued Monsanto made some toxic chemicals, those got purchased and used in Vermont (specifically in schools), and those chemicals leaked into the air, and that the leaking – which Monsanto knows happens – constitutes being “released” into the environment. Monsanto argued that “released” really just means that the chemicals came directly out of their facility, like a smokestack. SCOV reviewed the legislative history and agreed with the plaintiffs.

 

The second question had two parts: first, whether Vermont’s medical-monitoring statute provided relief to people exposed to a toxic substance before the statute was enacted, and second, whether a defendant who sold their toxic product before the statute was enacted could be held liable. SCOV says no to the first part, but yes to the second. The opinion is interesting and goes through the history of the relevant statute very nicely. For our purposes, I can summarize it like this. Medical-monitoring creates a brand new cause of action. The statute isn’t retroactive, so to go back in time and say that someone can raise this brand new cause of action for exposure before anyone even knew this is a thing isn’t appropriate. (This doesn’t mean there aren’t other torts available; maybe there are but that’s not what we’re talking about here.) But SCOV finds that the trigger for an action is exposure, not when the product was sold. 

 

So, this opinion will now guide the federal district court with respect to these particular legal questions as the case goes forward.