Last Friday, the Ninth Circuit Court of Appeals overturned a district court’s preliminary injunction mandating the destruction of Roundup Ready sugar beets planted pursuant to permits issued by the Animal and Plant Health Inspection Service (“APHIS”). The court of appeals ruled that because the sugar beets had to be harvested in their first year, before they produced a flowering seed stalk, they did not present an “irreparable harm” to the plaintiffs requiring an injunction.
In August 2010, APHIS issued permits allowing growers to plant seedless juvenile RR sugar beets, known as “stecklings,” in select, remote areas of Oregon and Arizona. The permits, however, prohibited the growers from allowing the seeds to flower or pollinate. Within a week of the permits being issued, conventional sugar beet growers filed for a preliminary injunction and a temporary restraining order in the northern district of California to stop the planting. The plaintiffs argued that in issuing the permits, APHIS violated the National Environmental Policy Act (NEPA) by considering only the environmental effects of the stecklings and not the overall effects of the entire RR sugar beet cycle. The district court agreed and held a three-day evidentiary hearing to determine an appropriate remedy. After the hearing, the court issued a preliminary injunction and ordered that the sugar beets already planted must be destroyed. The court of appeals issued a stay pending its review of the issue on appeal.
As an initial matter, the court of appeals affirmed the district court’s ruling that plaintiffs had standing to bring the action. The court ruled that plaintiffs had sufficiently alleged that APHIS violated NEPA by “artificially carving up” the stages of RR sugar beet planting and production; that they had a concrete interest in NEPA’s rules; and that it was “reasonably probable” that the challenged action would threaten their interests.
In considering the injunction, the court of appeals found that the plaintiffs failed to establish that the “permitted steckling plants present a possibility, much less a likelihood, of genetic contamination or other irreparable harm.” In fact, the court of appeals found that the “undisputed evidence indicates that the stecklings pose a negligible risk of genetic contamination, as the juvenile plants are biologically incapable of flowering or cross-pollinating.” In overturning the injunction, the court of appeals explicitly relied on the Supreme Court’s recent decision in Monsanto v. Geertson Seed Farms, and found that APHIS’s permitting of steckling plants appears to follow the Supreme Court’s blueprint.