Court Vacates Deregulation of Genetically Modified Sugar Beet Seeds But Declines to Issue Injunction
Last Friday, a federal court in the northern district of California vacated the Animal and Plant Health Inspection Service’s (APHIS) decision to deregulate sugar beet seeds genetically modified by Monsanto to be resistant to Roundup. The vacatur order once again makes the seeds a “regulated” article under the Plant Protection Act and consequently precludes their planting until APHIS complies with the National Environmental Policy Act (NEPA) and conducts an Environmental Impact Statement (EIS), or otherwise orders the partial deregulation of the seeds. The court’s order, however, specifically allows the seeds already planted to be harvested and processed.
In considering the remedies available to the plaintiffs, the court relied heavily on the Supreme Court’s recent decision in Monsanto Co. v. Geertson Seed Farms, 130 S.Ct. 2743 (2010). It found that in light of Geertson, an injunction preventing the planting of the genetically modified seeds was unnecessary and inappropriate. Specifically, the court held that Geertson prevented the issuance of an injunction when a “less drastic remedy” was sufficiently able to redress the plaintiffs’ injury. In so ruling, the court rejected the plaintiffs’ argument that APHIS would be unable to sufficiently prevent growers from violating the vacatur as too speculative to warrant an injunction. The court’s ruling therefore, makes no attempt to limit APHIS’s authority to “partially deregulate” the seeds and allow their planting under certain restrictions while the EIS is being completed.
The court also held that under Ninth Circuit law it was constrained to follow, it had the discretion to leave the invalid deregulation order in effect while APHIS conducted an EIS, if equity so required. Although the court objected to the discretion in the face of what it found to be a clear statutory mandate to invalidate the deregulation order, it nonetheless applied the Ninth Circuit law to determine if justice required leaving the order in effect. Ultimately, the court declined to exercise its discretion because it found that a vacatur would not cause “serious irreparable environmental injury.” In so ruling, the court declined to recognize Monsanto’s claim that the vacatur would cause it significant economic harm as a factor.
The court’s ruling comes almost a year after its determination that APHIS violated NEPA by deregulating the seeds without first performing an EIS, and five months after its denial of the plaintiffs’ request for a preliminary injunction.
In March 2010, the court ruled that because the plaintiffs had delayed five years in seeking and injunction, and during that time the industry had overwhelmingly converted to GM seeds, a preliminary injunction was not warranted. In closing, however, the court admonished that its decision should not be viewed as indicative of its views on a permanent injunction, and that going forward the defendants should take all efforts to use conventional seeds.
Before the court could rule on the plaintiffs’ permanent injunction, however, the Supreme Court announced its opinion in Geertson Seed Farms. In Geertson, the Supreme Court was faced with a similar case in which a district court had found an APHIS order deregulating Roundup Ready alfalfa to be invalid for want of an EIS and injoined the planting of the seeds until the EIS was complete. The Supreme Court, however, overturned the injunction because it was unnecessary in light of the decision to vacate the deregulation order, and it inappropriately preempted APHIS’s authority to first consider how it would proceed while the EIS was pending.
Finding the Court’s ruling in Geertson Seed Farms precluded a permanent injunction, the district court in this case simply vacated APHIS’s deregulation order and remanded the case back to APHIS for further consideration. Thus, as it stands now, APHIS is free to issue interim measures during the pendency of the EIS, such as partially deregulating the genetically modified seeds and allow their planting under certain restrictions, and the plaintiffs, of course, are free to again challenge any such decision.
Today’s post authors are John Mandler and Rhyddid Watkins
Earlier this week, plaintiffs in the eucalyptus tree case filed an amended complaint adding two new claims asserting that APHIS violated the Endangered Species Act (ESA) by granting ArborGen permits to plant its genetically modified eucalyptus trees. Significantly, this is the first time that ESA claims have been asserted within the GMO context.
The first claim alleges that APHIS failed to consult with the Fish and Wildlife Service (FWS) to ensure that planting the eucalyptus trees in accordance with the permits would not jeopardize the continued existence of any threatened or endangered species, or result in the destruction of any critical habitat. The second claim alleges that APHIS violated the ESA by considering ArborGen’s permits in isolation and failing to account for the cumulative effects of ArborGen’s “overall strategy” of introducing its eucalyptus trees throughout the southeast.
In essence, the ESA is a comprehensive act designed to ensure that federal agencies work with the FWS to assess what, if any, effects their actions will have on endangered or threatened species and habitats. If an agency determines that its actions will have such an effect, the act requires it consult with the FWS, who in turn must conduct either a biological opinion or assessment of the action.
Again, this amended complaint introduces claims under the ESA for the first time in a genetically modified crop case, and perhaps illustrate the plaintiffs’ concerns relating to the potential invasiveness of the eucalyptus trees. Follow Faegre’s FAB blog for further coverage of this ongoing litigation.
Today’s post authors are Jess R. Phelps and Rhyddid Watkins.
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.