The Ninth Circuit Court of Appeals has reversed a district court ruling that would have required those who had planted genetically engineered (GE) sugar beet seedlings to destroy the crop. Ctr. for Food Safety v. Vilsack, Nos. 10-17719, -17722 (9th Cir., decided February 25, 2011).
The Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) had issued permits allowing the GE sugar beet seedlings to be planted in select, remote areas and imposing conditions prohibiting flowering or pollination before the permits expired on February 28, 2011.
The plaintiffs challenged those permits because they were issued before APHIS had completed an environmental impact statement, which was required by a previous court order, and the district court concluded that they were likely to prevail on the merits. Additional details about the case appear in Issues 366 and 374 of this Update.
While the Ninth Circuit agreed with the lower court that the plaintiffs had demonstrated a cognizable injury in fact, thus establishing standing under the National Environmental Policy Act, it determined that they had not shown, for purposes of obtaining a preliminary injunction, that irreparable harm was likely. According to the Ninth Circuit, seedlings, otherwise referred to as “stecklings,” “pose a negligible risk of genetic contamination, as the juvenile plants are biologically incapable of flowering or cross-pollinating before February 28, 2011, when the permits expire.” The court also noted that the district court’s contrary ruling was based on “past examples of contamination with other plants” and not on “continuing, present adverse effects.” The court cites a U.S. Supreme Court ruling about GE alfalfa, warning against injunctive relief “where APHIS’s action is ‘sufficiently limited’ that ‘the risk of gene flow to [Plaintiffs’] crops could be virtually nonexistent.’”
Because “Plaintiffs’ allegations of harm hinge entirely on later stages of Roundup Ready sugar beet planting and production,” the court determined that when they sought the preliminary injunction, “none of the irreparable harms they sought to prevent were likely. Their alleged irreparable harms hinged on future APHIS decisions.” The court noted that APHIS authorized later stages of GE sugar beet planting and production in February 2011, a decision that the plaintiffs have challenged. Information about that lawsuit appears in Issue 383 of this Update.
The court concluded by observing, “[T]his appeal presents a thin slice of a larger litigation. Perhaps, in the end, the entire controversy will be resolved, and we can say that the ‘fair discourse hath been as sugar, [m]aking the way sweet and delectable.’ William Shakespeare, Richard II, act 2, sc. 3. Needless to say, given the course of the litigation, that is unlikely.” According to the court, at this time, “Biology, geography, field experience, and permit restrictions make irreparable injury unlikely.”