The Ninth Circuit Court of Appeals has upheld a lower court ruling affirming the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) decision that genetically modified (GM) alfalfa is not a “plant pest” and thus that it lacked authority to stop its deregulation or to consult with the Fish and Wildlife Service regarding potential environmental impacts. Ctr. for Food Safety v. Vilsack, No. 12-15052 (9th Cir., decided May 17, 2013). The Center for Food Safety, an organization dedicated to environmental advocacy, has announced its determination to appeal the ruling and to pursue other legal options to stop the planting and cultivation of GM alfalfa.

The gist of the Ninth Circuit’s ruling is that while the plaintiffs’ environmental and economic concerns may be valid, they have no bearing, under the current statutory scheme, on APHIS’s authority vis-à-vis GM crops. The court’s opinion methodically explains how GM alfalfa is created and carefully outlines the various agencies and statutory authorities bearing on GM crops and the herbicides used with them. According to the court, the plaintiffs’ concerns— “transgenic contamination of conventional alfalfa and increased herbicide use”—do not “constitute plant disease, injury, or damage, which are the harms that the statute requires.”

The statute at issue is the Plant Protection Act which gives APHIS regulatory authority over “plant pests.” The court disagreed with the plaintiffs that the term should be defined broadly and stated in this regard, “The job of updating Title 7 of the United States Code to address the potential harms caused by genetic modification (including transgenic contamination and increased herbicide use) is a job for Congress, not this court, to undertake.”

The parties have been litigating the deregulation of GM alfalfa since 2006. Information about a U.S. Supreme Court ruling on the breadth of an injunction imposed by a lower court appears in Issue 354 of this Update. See Center for Food Safety Press Release, May 17, 2013.