Roundup-Ready Alfalfa Injunction Upheld

January 15, 2010 | Roger McEowen

 

The U.S. Court of Appeals for the Ninth Circuit has upheld the injunction barring the future planting of Monsanto alfalfa until the government prepares an Environmental Impact Statement (EIS).  The ruling stems from litigation involving Monsanto’s development of Roundup Ready alfalfa in 2004.  USDA’s Animal and Plant Health Inspection Service (APHIS) regulates the introduction of genetically modified organisms and products, and initially classified Monsanto’s alfalfa as a regulated article.  Monsanto requested the agency grant it non-regulated status, but APHIS, in late 2004, solicited public comments on Monsanto’s request.  APHIS also indicated that it had conducted an environmental assessment and concluded that Monsanto’s alfalfa was not likely to have a significant impact on organic farming.  Almost 80 percent of the 663 submitted comments opposed Monsanto’s request.  In spite of the overwhelming opposition to Monsanto’s request, APHIS made a finding of no significant impact in June of 2005. Importantly, APHIS also unilaterally concluded that it need not prepare an EIS and unconditionally deregulated Roundup Ready Alfalfa.  That’s when the legal battle began.

The plaintiffs, a consortium of conventional alfalfa-seed farms, farm organizations and environmental groups, sued in early 2006 alleging violations of the National Environmental Policy Act and other federal laws.  The trial court agreed and granted the plaintiffs summary judgment.  As for the remedy, the trial court entered a preliminary injunction on March 12, 2007, enjoining the planting of Roundup Ready alfalfa and all sales of Roundup Ready alfalfa after March 30, 2007, pending the issuance of a permanent injunction.  The injunction did not stop, however, the future harvesting and sale of Roundup Ready alfalfa that had already been planted or could be planted by March 30, 2007.  The court, after holding a hearing on the matter, entered a permanent injunction in May of 2007, which covered all planting of Roundup Ready alfalfa after March 30, 2007, pending APHIS’s completion of an EIS and decision on the deregulation petition.  Monsanto and APHIS appealed the scope of the injunction, but conceded that NEPA had been violated. 

On appeal, the court determined that the trial court had properly “balanced the harms” when making its determination as to whether to issue the injunction.  The appellate court noted that the trial court did not merely presume that irreparable harm would result from a NEPA violation.  Instead, the trial court found that genetic contamination of organic and conventional alfalfa had already occurred that was irreparable because farmers cannot replant alfalfa for two to four years after the removal of contaminated alfalfa.  The trial court also determined that Monsanto and APHIS would not be able to enforce compliance with any proposed mitigation measures given the government’s admitted lack of resources.  The appellate court also ruled that the trial court properly found that weather conditions could prevent the minimization of hay-to-hay transmission (by harvesting before the crop blooms to 10 percent).  As for the balancing of the harms, the trial court determined that the income from Roundup Ready alfalfa amounted to a miniscule percentage of Monsanto’s total revenue and that unsold seed could be stored for planting in later years, and that the harm to growers and consumers was significantly greater.  The appellate court reasoned that the trial court’s findings were supported by the evidence and also that the public interest in enjoining the use of Roundup Ready alfalfa before its impact was studied. outweighed its social value.  Geertson Seed Farms, et al. v. Johanns, et al., 541 F.3d 938 (9th Cir. Sept. 2, 2008), pet. for reh'g den., 570 F.3d 1130 (9th Cir. 2009).

Note:  On January 15, 2010, the U.S. Supreme Court agreed to hear the case.  The issues before the Court will be (1) whether Monsanto, under the NEPA are exempt from a requirement to show a likelihood of irreparable harm to obtain an injunction; (2) whether a district court may provide injunctive relief under NEPA without an evidentiary hearing; and (3) whether the 9th Circuit erred in affirming a nationwide injunction as a remedy to a NEPA violation based on a remote possibility of irreparable harm.  Monsanto Co. v. Geerston Seed Farms, No. 09-475, 2010 U.S. LEXIS 535 (U.S. Jan. 15, 2010).