In late April, the United States Supreme Court heard oral arguments on whether the lower courts erred in ordering the reregulation of Roundup Ready Alfalfa (RRA) and enjoining its future use pending the completion of an Environmental Impact Statement (EIS). The Court’s decision is expected this June and will be discussed more fully at Faegre & Benson’s FAB conference in July.
The case, Monsanto Co. v. Geertson Seed Farms (No. 09-475), has drawn national interest for its potential effect on NEPA claims generally, and on genetically engineered crops specifically. The Court sat without Justice Breyer who recused himself because his brother Charles Breyer was the district court judge, but with Justice Thomas, a one-time lawyer for Monsanto.
Oral arguments sparked an array of questioning from several of the Justices focused primarily on the standing of the parties and the appropriateness of the appeal. Within moments of opening, counsel for Monsanto was asked by Justice Alito why the appeal should not simply be dismissed as improvidently granted. This line of questioning was pursued by three other Justices who were apparently concerned that Monsanto had challenged only the district court’s injunction and not its order reregulating RRA. Counsel for Geertson similarly faced immediate questioning from Justice Scalia about whether any of the plaintiffs stood to be harmed by the deregulation of RRA and therefore had standing to sue in the first place.
The case began in 2004 when Monsanto and Forage Genetics International requested that the Animal and Plant Health Inspection Service (APHIS) deregulate RRA, which is genetically modified to survive application of the potent herbicide glyposate. After determining an EIS was unnecessary, and that the use of RRA would not have significant environmental effects, the APHIS agreed to deregulate it.
In response, the Center for Food Safety, together with conventional and organic alfalfa farmers, sued the Department of Agriculture, the EPA and the APHIS. The district court phrased the question before it as essentially whether the introduction of a genetically engineered crop that might significantly interfere with or even eliminate the production of conventional or organic crops constituted a “significant environmental impact” such that an EIS was required before it could be deregulated. The district court had little trouble in finding that it did. Accordingly it vacated the APHIS’s decision to deregulate RRA and entered an injunction prohibiting the future sale and planting of RRA pending the completion of the EIS. The Ninth Circuit Court of Appeals affirmed in all respects.
The Supreme Court granted certiorari and is now considering: (1) whether the plaintiffs demonstrated they would suffer the “irreparable harm” required for an injunction; and (2) whether the appeal is even appropriate given that the Court is not reviewing the order reregulating RRA, which has substantially the same effect as the injunction.
See the Registration page for information about how you can attend the conference and join the discussion surrounding the regulation of RRA.
Today’s post author is Rhyddid Watkins, a member of Faegre & Benson’s litigation practice who focuses primarily on agribusiness, mass torts, and class actions.
