Monsanto Company must be thinking that determination sometimes yields intended results. The U.S. Supreme Court announced on January 15 that it will grant Monsanto’s request for review of a 2007 federal injunction that halted the planting and sale of Monsanto’s Roundup Ready alfalfa seed pending completion of an Environmental Impact Statement. The Court’s announcement came as a surprise to many who’ve followed the case, which Monsanto has repeatedly lost in a protracted series of court decisions. Since the 2007 injunction, the Animal and Plant Health Inspection Service (APHIS) has completed the court ordered draft EIS on the proposed deregulation of the Roundup Ready alfalfa seed, and the EIS comment period still remains open until February 16, 2010.
The following is a compilation of summaries we’ve written in the past about the earlier decisions in Geertson Seed Farms v. Monsanto.
The 2007 decisions: Geertson Seed Farms v. Johanns, 2007 WL 518624 (N.D. Cal. Feb. 13, 2007), amended by Geertson Farms, Inc. v. Johanns, 2007 U.S. Dist. LEXIS 21491 (N.D. Cal., Mar. 12, 2007).
The federal district court in California issued its opinion on the deregulation of “Roundup Ready” alfalfa pursuant to the Plant Protection Act on February 13, 2007. Upon receiving Monsanto’s petition for deregulation of the alfalfa seed, APHIS conducted an Environmental Assessment and received over 500 comments in opposition to the deregulation. The opposition’s primary concern was the potential of contamination. APHIS, however, made a Finding of No Significant Impact (FONSI) and approved the deregulation petition, thereby allowing the seed to be sold without USDA oversight. Geertson Seed Farms, joined by a number of growers and associations, filed claims under the National Environmental Policy Act (NEPA) as well as the Endangered Species Act and Plant Protection Act. In regards to NEPA, they argued that the agency should have prepared an EIS for the deregulation.
Addressing only the NEPA claims, the court agreed that APHIS should have conducted an EIS because of the significant environmental impact posed by deregulation of the alfalfa seed. A realistic potential for contamination existed, said the court, but the agency had not fully inquired into the extent of this potential. The court also determined that APHIS did not adequately examine the potential effects of Roundup Ready alfalfa on organic farming and the development of glyphosate-resistant weeds and that there were “substantial questions” raised by the deregulation petition that the agency should have addressed in an EIS. Concluding that the question of whether the introduction of the genetically engineered alfalfa and its potential to affect non-genetic alfalfa posed a significant environmental impact necessitated further study, the court found that APHIS’s decision was “arbitrary and capricious” and ordered the agency to prepare an EIS. The court later enjoined the planting of Roundup Ready alfalfa from March 30, 2007, until completion of the EIS and reconsideration of the deregulation petition, except for those farmers who had already purchased the seed. In May of 2007, the court enjoined any future planting of the alfalfa. An order by the court in June, 2007 required disclosure of all Roundup Ready planting sites.
The 2008 appeal: Geertson Seed Farms v. Johanns, 2008 U.S. App. LEXIS 18752 (9th Cir. Sept. 2, 2008)
In continued litigation over the planting of genetically modified alfalfa, the Ninth Circuit Court of Appeals upheld a permanent injunction against further planting pending completion of an Environmental Impact Statement (EIS) by the U.S. Animal and Plant Health Inspection Service (APHIS). In Geertson I, the District Court for the Northern District of California ordered an injunction on a challenge of APHIS’s approval of the “Roundup Ready” seed brought by alfalfa seed farms, farm organizations and environmental groups. The USDA, Monsanto and Forage Genetics appealed, arguing that the injunction was overly broad and the district court failed to hold an evidentiary hearing prior to the injunction order. According to the appeals court, the district court correctly applied the traditional balancing test, and an evidentiary hearing after two earlier hearings was not required because the injunction had a limited purpose and duration—until completion of the EIS. Judge Smith issued a dissent, citing serious concerns with the scope of the injunction and claiming the court created a new exception to the evidentiary hearing requirement.
The 2009 requests: Geertson Seed Farms v. Johanns, 570 F. 3d 1130, 2009 U.S. App. LEXIS 13884 (9th Cir. Cal., 2009).
In the three year old Geertson Seed case, the Ninth Circuit refused a rehearing request on the injunction that halted planting of Monsanto’s Roundy Ready alfalfa. Geertson Seed Farms v. Johanns, — F.3d —, 2009 WL 1782972 (9th Cir. 2009). Monsanto had appealed the injunction issued by the trial court, which required completion of an Environmental Impact Statement by the USDA’s Animal and Plant Health Inspection Service (APHIS) before further planting of the alfalfa seed, but the court of appeals upheld the order last September in Geertson Seed Farms v. Johanns, 541 F.3d 938 (9th Cir. 2008). Monsanto then sought panel rehearing and rehearing en banc. In June, the majority denied the rehearing request and prohibited any further rehearing petitions, despite a sharp dissent on the appeal that had criticized the majority for creating a new exception to the need for a full evidentiary hearing prior to issuing an injunction.