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.
Last month, several environmental organizations, including the Center for Food Safety and the Center for Biological Diversity, filed suit against the Animal and Plant Health Inspection Service (APHIS) in federal court in Florida. The plaintiffs are asserting four claims alleging, in essence, that APHIS violated the National Environmental Protection Act (NEPA) and the Food, Conservation, and Energy Act of 2008 by granting permits to ArborGen to field test genetically modified eucalyptus trees without first preparing an environmental impact statement (EIS).
On May 12, 2010, APHIS granted ArborGen and affiliated paper companies permission to perform field trials of genetically modified eucalyptus trees on 28 sites across seven states. Approximately 200,000 trees are, or are scheduled to be, planted on 300 acres in Texas, Louisiana, Mississippi, Alabama, Georgia, Florida, and South Carolina.
Although eucalyptus trees are not native to the United States and generally thrive only in very warm climates, they have been commercially grown in Hawaii and Florida for some time. ArborGen’s genetic modifications, however, are intended to allow the trees to be commercially grown further north by making them tolerant of temperatures as low as freezing. The trees are also modified to sterilize the male plants to prevent unintended invasion and to lower the lignin content, making them more suitable as raw materials for paper products. Eucalyptus trees provide valuable raw materials for pulp, paper, and bio-fuels and can be harvested faster than traditional hardwoods.
These field trials mark the first time that APHIS has approved genetically modified forest trees for open testing. Critics of the field tests, including the Georgia Department of Natural Resources and Florida Exotic Pest Plant Council, have expressed concerns that the eucalyptus trees can be particularly invasive because they are known for their longevity and pollen spread, and that they can be harmful to the natural environment because of their heavy water use, flammability, and susceptibility to harmful fungi.
Despite receiving over 12,000 objections to the trials, APHIS determined ArborGen could go forward after conducting only an environmental assessment, rather than the more involved EIS. Consequently, on July 1, 2010, the plaintiffs filed suit in federal court seeking to set aside the permits and obtain an injunction preventing APHIS from allowing any of the trees to flower pending the completion of an EIS. Plaintiffs are also seeking a declaration that APHIS violated NEPA and the Food, Conservation, and Energy Act. APHIS has not yet filed an answer.
This dispute could have potentially important impacts on the regulatory approval process for genetically modified crops, particularly after the recent U.S. Supreme Court decision in Monsanto v. Geertson Seed Farms.