In a 7-1 ruling, the U.S. Supreme Court has determined that a district court erred in enjoining the Animal and Plant Health Inspection Service (APHIS) from even partially deregulating Monsanto’s Roundup Ready® alfalfa while the agency takes steps to comply with the National Environmental Policy Act (NEPA). Monsanto Co. v. Geertson Seed Farms, No. 09-475 (U.S., decided June 21, 2010).
The district court found that APHIS failed to prepare an environmental impact statement (EIS) as required under NEPA before granting Monsanto’s petition to deregulate the seed, which has been genetically modified (GM) to resist glyphosate, a weed killer used on GM crop fields. The court then enjoined APHIS from deregulating GM alfalfa until an EIS could be completed and further enjoined the seeds’ sale and planting beyond sales already made in March 2007. Farmers who had purchased the seed were allowed to plant it that year.
Writing for the majority, Justice Samuel Alito first determined that both Monsanto and the parties challenging the deregulation, i.e., conventional and organic alfalfa farmers and environmental groups, had standing to participate in the proceedings. The Court then explained that putting government action on hold pending compliance with NEPA is not appropriate unless “the traditional four-factor test” for the imposition of injunctive relief is satisfied. Applying that test, the Court ruled that an order forbidding APHIS from taking any action on Monsanto’s deregulation petition while the EIS was pending constituted an abuse of discretion. According to the Court, APHIS might be justified in partially deregulating the GM seed and allowing limited planting to occur while it complies with NEPA. The Court speculated that partial deregulation could be sufficiently limited to avoid gene transfer to conventional and organic alfalfa or to the development of glyphosate-resistant weeds; the Court further assumed that APHIS could “vigorously” police compliance with a limited deregulation plan. Still, the Court did not express its view on whether such relief was available on the record.
Shook, Hardy & Bacon Tort Partner Kevin Haroff appeared as counsel of record for the Washington Legal Foundation as amicus curiae in support of the petition for review.
Meanwhile, six Democratic senators and 50 House members have reportedly signed a letter to U.S. Agriculture Secretary Tom Vilsack urging him not to approve the commercialization of Roundup Ready® alfalfa. Disputing APHIS’s draft EIS, which concludes that the GM crop is unlikely to harm the environment or human health, they claim that the crop will contaminate conventional crops and harm the organic dairy industry. Agriculture correspondent Phillip Brasher notes that alfalfa is “typically grown on about 23 million acres”; he cites Monsanto data showing that before the GM crop was banned, “5,550 growers planted the seed on 236,000 acres nationwide.”
A spokesperson for the Center for Food Safety, which opposed GM alfalfa’s deregulation, reportedly said that the U.S. Supreme Court’s ruling was a victory, claiming that unlimited planting is still precluded until APHIS completes the EIS. A Monsanto spokesperson, who did not apparently see the ruling that way, was quoted as saying, “This is exceptionally good news. . . . We have Roundup Ready alfalfa seed ready to deliver and await USDA guidance on its release. Our goal is to have everything in place for growers to plant in fall 2010.” See Des Moines Register and FoodNavigator-USA.com, June 23, 2010.