Supreme Court Delivers Mixed Bag In Alfalfa Case

For the first time, the U.S. Supreme Court made a ruling on a genetically engineered crop in a case that centered on the U.S. Department of Agriculture's procedures in approving biotech alfalfa. But when all is said and done, I'm not sure we have much of a clearer picture going forward.

Bottom line from this case is USDA will need to be more careful in just giving blanket approvals of new products. And undoubtedly environmental groups will continue to challenge the agency's actions, but may have to change tactics.

In the case, Monsanto Co. vs. Geertson Seed Farms, the highest court said the Ninth District Court went too far in putting in place a permanent injunction of planting Roundup Ready alfalfa for the past three years.

The 7-1 ruling offered "emotional satisfaction" in recognizing some of the issues those in favor of the technology have argued since day one, said Mark McCaslin, president of Forage Genetics International, the marketer of the biotech alfalfa.

But on the other side the Center for Food Safety called the ruling a "victory" for farmers, consumers and the environment because planting on biotech alfalfa is still not permitted as the Animal and Plant Health Inspection Service continues to complete its full Environmental Impact Statement (EIS).

David Snively, Monsanto’s senior vice president and general counsel, said that the "District Court abused its discretion" by blocking the government from allowing limited planting during the interim. The outcome of the ruling made clear that no special rules apply to deregulation and if a party wants to obtain an injunction for violation of National Environmental Policy Act (NEPA), you still have to go through the four-part test.

The Supreme Court held that the standard four-factor test a party seeking an injunction must have suffered irreparable harm; the remedies available at law do not adequately compensate for the injury; a remedy in equity is warranted; and the public interest would not be disserved by a permanent injunction.

The highest court said the District Court "erred in entering the nationwide injunction against planting RRA, for two independent reasons. First, because it was inappropriate for the District Court to foreclose even the possibility of a partial and temporary deregulation, it follows that it was inappropriate to enjoin planting in accordance with such a deregulation decision. Second, an injunction is a drastic and extraordinary remedy, which should not be granted as a matter of course."

The court documents went on to explain that if a less drastic remedy was sufficient to redress their injury, no recourse to the additional and extraordinary relief of an injunction was warranted.

This ruling remands the case back to the District Court and then back to the USDA to determine what interim measures can be implemented while the agency completes its Environmental Impact Statement process.

Although the high court decision reverses parts of the lower courts’ rulings, the judgment holds that a vacatur bars the planting of Monsanto’s Roundup Ready Alfalfa until and unless future deregulation efforts, which was called a "victory" by the Center for Food Safety.

George Kimbrell, senior staff attorney for the Center for Food Safety, said the legal value of the case also is supportive to the extent that the Supreme Court said that "transgenic contamination of natural plants represents a significant harm that can be redressed by the courts."

Monsanto countered that the "ruling the Supreme Court did NOT give legal standing for lawsuits or injury claims as the result of cross-pollination or gene flow between conventional/organic alfalfa and biotech alfalfa. What the court said is that litigants have constitutional standing to challenge the government’s regulatory process.  Those are completely different," Monsanto stated in a blog post.

A statement from CFS noted that "USDA indicated at the Supreme Court argument that full deregulation is about a year away and that they will not pursue a partial deregulation in the interim. Any new attempt at deregulation in full or part will be subject to legal challenge."

However, both Snively and McCaslin who were present at the Supreme Court hearings do not recall USDA making this statement. Snively stated that USDA would have "no reason to block expanded planting" and if it is indeed going to be a year before the full Environmental Impact Statement is completed there "would be no reason not to allow for expanded planting in the interim."

Caleb Weaver, USDA press secretary, said in a statement that APHIS is carefully reviewing the Supreme Court ruling before making decisions about its next steps. APHIS received 145,000 comments on the RR Alfalfa draft EIS. Once that review is complete, the next step is to develop a final EIS for Roundup Ready alfalfa, taking into consideration those comments.

Sen. Patrick Leahy (D-Vt.) and Rep. Peter DeFazio (D-OR), joined by 49 other representatives and five other senators, sent a letter June 23 to Agriculture Secretary Tom Vilsack urging USDA not to deregulate the crop given the risk of contamination posed to dairy farmers and the organic industry.

"Completing the Roundup Ready alfalfa final EIS is a high priority for APHIS," Weaver said. "The document is expected to be completed in time for the spring planting of alfalfa crops in 2011."

McCaslin said Forage Genetics wants to get biotech alfalfa back into the market as quickly as possible. "An interim solution would be nice, but it's not a given," he said. McCaslin said seed could quickly get into the market channels for planting this fall if needed, but time is running out to make that happen. If or when it is approved, McCaslin expects an increased acceptance of the crop.

Prior to the injunction, Roundup Ready alfalfa was planted by approximately 5,500 growers across 263,000 acres. Alfalfa is the fourth-largest crop grown in the U.S., with 23 million acres grown annually.

Ruling ramifications

In many ways the case reinforces the role of APHIS. Snively added that it also allows the "door to swing both ways in regulatory matters" in allowing parties to challenge decisions by district courts.

Roger McEowen, director of the Center for Agricultural Law and Taxation, noted that blanket injunctions will not be essentially automatic in cases involving the NEPA. "Environmental activist groups along with certain agricultural groups have often used the NEPA to sue the government and its agencies with little success," he said. "These groups will have to reconsider their strategy in light of the Supreme Court’s decision."

McEowen wrote a great summary of the case which can be found here.

Gary Baise, attorney for Frank Weeda Terman Bode Matz PC, noted that the legalistic requirements based on injunctions tells districts courts to be "darn careful" before implementing injunctions. But with three years of this case caught in the courts, part of the damage was already done. And it doesn't prevent future challenges after USDA releases its final EIS.

"The case also sends a wakeup call to USDA to take environmental statutes pretty darn seriously," Baise added. He is involved in consulting wheat growers, and they're already looking at environmental hurdles which could surface if or when biotech wheat was to be planted.

A similar case involving Monsanto's biotech sugar beets, was slated for a court hearing July 9, but the judge in that case has postponed the hearing until mid-August to give all parties a chance to study the Supreme Court ruling. Snively said this ruling gives guidance to the court. The court has already ruled the sugar beets were approved by USDA without proper environmental review and is considering a permanent injunction.