In Monsanto v. Geertson Seed Farms, the Supreme Court, in a 7-1 decision authored by Justice Alito, determined that a District Court's nationwide ban on the planting of genetically modified alfalfa seed was overly broad. The case however, is the first to look at these bioengineered seeds and places parameters on the procedures that must be complied with before they are available to plant.
Congress enacted the Plant Protection Act (PPA) to "detect, control, eradicate and suppress plant pests and noxious weeds." It provides that "no person shall import, enter, export, or move in interstate commerce any plant pest." The PPA delegates the authority to regulate these plant pests to the Secretary of Agriculture and it in turn delegated the authority to the Animal and Plant Health Inspection Service (APHIS). APHIS regulations "govern organisms and products altered or produced through genetic engineering that are plant pests or believed to be plant pests." The agency retains strict control over these articles and forbids them absent explicit approval.
There are multiple ways to obtain approval but the method at issue in this case is a petition to APHIS to determine that the item does not present a plant pest risk and therefore should not be regulated. If deregulation would constitute a major federal action significantly affecting the quality of the human environment the National Environmental Protection Act (NEPA) requires APHIS to complete an Environmental Impact Statement (EIS). The EIS is a decision-making tool in which the environmental impacts of a federal action are assessed and considered along with alternatives. The only way to avoid preparation of an EIS is to prepare a shorter document entitled an Environmental Assessment (EA) and to issue a Finding of No Significant Impact (FONSI).
Here, in 2004, Monsanto Company and Forage Genetics International sought deregulation of Roundup Ready Alfalfa (RRA), a genetically modified seed that can withstand application of Monsanto's Roundup pesticide. APHIS prepared and received comments on an EA which received 520 negative comments out of the 663 received. Commenters objected that the EA did not effectively consider the potential consequences of deregulation which would include contamination of organic crops and add to the proliferation of Roundup resistant weeds. APHIS, however did not prepare an EIS and issued a FONSI .
The Plaintiffs, organic farmers, environmental groups and food safety advocates brought forth this action in 2006 claiming that the deregulation decision violated NEPA. The District Court found that APHIS's failure to consider contamination of organic alfalfa along with the development of Roundup resistant weeds ran afoul of NEPA. Due to the NEPA violation the District Court vacated the the deregulation decision, ordered an EIS before ruling on the deregulation petition and enjoined the planting of RRA , although farmers who had already bought the seed and relied on the deregulation decision were grandfathered in. The Ninth Circuit affirmed and the Supreme Court granted certiorari.
The first important rule to flow from the Supreme Court decision is that economic damages incurred to prevent environmental damages confers standing. Standing under Article II of the Constitution requires that an injury be concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling. Horne v. Flores, 129 S. Ct. 2579 (2009). Additional testing and measures taken to ensure the purity of organic alfalfa are sufficiently concrete, even if actual contamination does not occur, to satisfy the injury-in-fact prong of constitutional standing. Those harms are readily attributable to the APHIS deregulation decision and a judicial order prohibiting the growth and sale of the genetically engineered alfalfa would remedy the farmers injuries by eliminating or minimizing the risk of gene flow to conventional and organic alfalfa.
A plaintiff seeking a permanent injunction must satisfy a four-factor test before a court can grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for the injury; (3) that considering the balance of harms between the plaintiff and defendant a remedy at equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. eBay, Inc. v. MercExchange LLC, 547 U.S. 388, 391 (2006). This traditional four-factor test applies when a plaintiff seeks a permanent injunction to remedy a NEPA violation. Winter v. NRDC, 555 U.S. 7 (2008).
The Court determined that the permanent nationwide ban was too broad because the respondents could not show that they would suffer irreparable injury if APHIS was allowed to proceed with any partial deregulation. If and when the APHIS pursues a partial deregulation that arguably runs afoul of NEPA, respondents may file a new action seeking appropriate relief. Further, a partial deregulation may not cause respondents any injury at all. If the scope of the partial deregulation is sufficiently limited with proper oversight, the risk of gene flow to their crops may not exist.
The Court upheld the vacatur of the deregulation decision and EIS requirement but overturned the permanent injunction. Therefore, no new seeds could be planted until the NEPA violation was cured. In December of 2010 the APHIS released a final EIS over 2,300 pages. The conclusion of the statement allowed unrestricted commercial growing or partially restricted growing. On January 27, 2011, Tom Vilsack, Agriculture Secretary announced his decision to allow unrestricted growing of RRA. The Center of Food Safety stated that they'll be back in court seeking to vacate Vilsack's approval.
