AGRICULTURE:

Supreme Court to take first look at GM crops in case with NEPA implications

The Supreme Court is scheduled to hear oral arguments Tuesday involving a federal judge's temporary ban on a breed of pesticide-resistant alfalfa, setting the stage for the court's first-ever ruling on genetically modified crops.

Legal experts do not expect a blockbuster decision on the merits of regulating modified plants such as Monsanto Co.'s Roundup Ready alfalfa, but the case, Monsanto Co. v. Geertson Seed Farms, has drawn widespread interest because the justices could issue a ruling that would raise or lower the threshold for challenges under the National Environmental Policy Act.

Environmental groups, which frequently use the statute to bring lawsuits against government agencies and industry groups, "don't expect anything good" to come from the Supreme Court's eventual decision, said David Bookbinder, chief climate counsel at the Sierra Club. It seems that some of the justices are "on a kick to gut NEPA remedies," he said earlier this year during a panel discussion on environmental law at Georgetown University.

That sense of foreboding is compounded by the fact that the case comes from the 9th U.S. Circuit Court of Appeals, a frequent source of environmental cases struck down by the Supreme Court. Last year, when the Supreme Court overturned five decisions favoring environmentalists, four had come from the 9th Circuit (Greenwire, June 25, 2009).

The Monsanto case stems from a 2006 lawsuit in the U.S. District Court for the Northern District of California. Led by Phillip Geertson, a producer of organic alfalfa seeds from Adrian, Ore., the plaintiffs claimed that Roundup Ready alfalfa could spread its genes to alfalfa in neighboring fields, potentially preventing the other farmers from marketing their produce as organic.

Organic farmers convinced the court that they faced a "likelihood of irreparable harm" from genetic contamination, securing a ban on planting of Roundup Ready alfalfa that would remain in place until the Department of Agriculture concludes an environmental review.

"The court of appeals approved an injunction that is so broad that it prohibits beneficial activities that pose no risk of harm whatsoever," attorneys for Monsanto wrote in their petition for Supreme Court review, which was granted in January. "If not reversed, the Ninth Circuit's holding threatens to make blanket injunctions all but automatic in NEPA cases arising in that circuit."

Defenders of Wildlife, the Center for Biological Diversity and the Humane Society of the United States filed a friend-of-the-court brief urging the court not to accept Monsanto's argument, saying such a ruling would hinder their ability to rely on the statute "to ensure a meaningful consideration by federal agencies of the impacts of their actions on the environment, and particularly wildlife and plants."

Michael Senatore, vice president of conservation law at Defenders of Wildlife, said his organization has not been involved in the issue of modified crops but wanted to weigh in because of the case's potential impact on environmental litigation.

"It is a NEPA case, and NEPA has fared exceedingly poorly in the Supreme Court -- I think it's 0-for-13," Senatore said. If the organic farmers lose, he added, "we could get another adverse NEPA ruling that could have implications for the work that we do."

Industry groups have described the alfalfa lawsuit as a typical abuse of NEPA by advocacy groups, saying the litigation is intended to obstruct and delay action even though there is little or no risk of harm to plaintiffs.

The potential impact of the Supreme Court's ruling on a variety of environmental cases has drawn briefs from business groups beyond agriculture. The U.S. Chamber of Commerce, the American Petroleum Institute, Croplife America and the National Association of Home Builders joined together last month to file a friend-of-the-court brief, urging the court to set a high bar for plaintiffs who seek injunctions against industry while suing for environmental review.

"In this case," the four groups said in their amicus brief, "the Court should make clear once and for all that a court must find likely irreparable harm before issuing an injunction."

Seeds of the case

The development of genetically modified crops has introduced a variety of novel legal questions, but the Supreme Court has never before agreed to consider the issues raised by the technology. Lower courts have largely treated genetically modified crops and nonmodified crops as interchangeable, but the lower courts' decisions in this case broke that mold.

U.S. District Judge Charles Breyer, the brother of Supreme Court Justice Stephen Breyer, ruled that the government needed to examine the modified breed's impact even though there was no reason to believe it was harmful. Even a remote possibility of genetic contamination justified environmental review under NEPA, he wrote in his 2007 decision.

"The government does not cite any case, and the court is aware of none, which holds that an impact is not significant simply because a federal agency determines that the major federal action does not jeopardize the public's health and safety," Breyer wrote. "The paucity of caselaw is unsurprising given that one of Congress' express goals in adopting NEPA was to 'attain the widest range of beneficial uses of the environment without degradation, risk to health and safety, or other undesirable and unintended consequences.' A federal action that eliminates a farmer's choice to grow non-genetically engineered crops, or a consumer's choice to eat non-genetically engineered food, is an undesirable consequence."

Monsanto appealed to the Supreme Court last year after the 9th Circuit upheld the ban for the second time in a 2-1 decision. Because of Charles Breyer's involvement in the case, the Supreme Court will consider the case without left-leaning Justice Breyer.

In its petition for review, Monsanto argued that USDA's proposed measures would have reduced the likelihood of cross-pollination to a fraction of 1 percent. Even if a few plants could conceivably become contaminated, it would hardly have the severe and persistent impact claimed by the plaintiffs, the company said.

"The district court's suggestion that continued planting of [Roundup Ready alfalfa] could eliminate the availability of conventional alfalfa is bad science fiction with no support in the record," Monsanto wrote.

Monsanto moved forward without the support of USDA, which had already begun preparing the environmental impact statement ordered by the district court. In a draft statement released in December, the agency found that deregulating the Roundup Ready alfalfa would have "no significant impact on the human environment." A public comment period on the draft statement ended last month.

The ban on alfalfa plantings would end once the agency concludes the environmental review process. Though that would likely render the case moot, a final statement could still be years away.

The Supreme Court's eventual decision could set precedent for other litigation involving the introduction of GM crops, such as an ongoing lawsuit over genetically modified sugar beets. In the case, which originated in the same California district court, Judge Jeffrey White allowed plantings to continue this year but warned that he might not allow farmers to use the modified seeds in future seasons.

White ordered USDA to prepare an environmental impact statement last fall after farmers raised concerns about genetic contamination. He will decide this summer whether to order an injunction against future plantings until the agency finishes its review.

"The parties should not assume that the court's decision to deny a preliminary injunction is indicative of its views on a permanent injunction," White wrote, urging farmers to "take all efforts, going forward, to use conventional seed" (Greenwire, March 17).

Harm?

The Supreme Court case hinges on Monsanto's claim that organic farmers did not demonstrate a "likelihood of irreparable harm."

That standard was also at the center of the Supreme Court's 2008 decision in Winter v. Natural Resources Defense Council, which upheld the Navy's use of sonar for training exercises in Southern California despite potential impacts on animals such as whales, seals and sea lions. Alison Peck, a law professor at West Virginia University, said it is unclear whether the justices will use the Monsanto case to further refine the test for environmental injunctions or delve more deeply into issues distinct to genetically modified crops.

Monsanto has claimed that the district court should not have been able to issue an injunction without holding an evidentiary hearing, but Breyer decided that such a hearing was unnecessary because USDA's review would resolve any disagreements over the facts of the case. The court's ruling could ultimately address this sort of procedural matter, Peck said.

But Monsanto's question on the "likelihood of irreparable harm" standard also opens the door for Monsanto's claim that genetic contamination would have been merely economic harm rather than environmental harm, she said. The organic farmers argue that Monsanto's argument on the environmental harm question is a backdoor effort to relitigate the district court's ruling.

"It's easy to come away after reading all the briefs and the lower court decisions, wondering exactly why this case is here," Senatore said. "It's really not clear that the injunction provided any additional relief beyond what was obtained through vacating the USDA's decision, so it strikes me as odd that this case was granted."

Though the justices usually refrain from reconsidering a lower court's decision on the merits, stranger things have happened, Peck said.

"It is entirely possible that the court will consider the contamination-as-environmental-harm ruling when it determines whether there is a 'likelihood of irreparable harm,'" Peck said. "Every word in that phrase could be a vehicle for revisiting the scope of the district court's holding that biotech contamination is within the scope of NEPA."

Click here to read the 9th Circuit's decision.

Click here to read the district court's decision.