June 22, 2010
On Monday, June 20, the U.S. Supreme Court issued its ruling in Monsanto Co. v. Geertson Seed Farm. The ruling involved a challenge by the USDA and Monsanto to a federal court decision to impose a permanent and nationwide injunction on the commercial planting of “Roundup Ready” alfalfa, genetically engineered to resist the herbicide glyphosate (RR alfalfa), pending completion of a full environmental impact statement (EIS).
The case began when alfalfa farmers and sustainable agriculture and environmental organizations challenged the decision of USDA’s Animal & Plant Health Inspection Service (APHIS) to deregulate the RR alfalfa, which would allow commercial planting. A federal court found that in making this decision, APHIS failed in its legal duty under the National Environmental Policy Act (NEPA) by issuing an environmental assessment and finding of no significant impact rather than a full EIS. The judge vacated the determination of APHIS that the RR alfalfa was deregulated and imposed the injunction, with one exception to allow farmers to harvest and sell RR alfalfa planted before March 30, 2007. The federal Ninth Circuit Court of Appeal upheld the judgment of the lower court.
Monsanto and USDA then appealed to the U.S. Supreme Court contending that the plaintiffs would suffer no injury if RR alfalfa continued to be planted pending completion of the EIS. They also argued that a permanent nationwide injunction on RR commercial planting was too broad a legal remedy. They wanted the lower court to impose a limited restriction which would have allowed continued commercial planting of RR alfalfa subject to requirements for distances from fields with non-GE alfalfa, cleaning of equipment used to harvest GE seed, requirements for identifying and handling GE seed and other measures.
The good news is that the Supreme Court ruling does not lift the current prohibition on the commercial planting of RR alfalfa because there was no challenge to the lower court’s order which vacated the APHIS determination to deregulate RR alfalfa. The Court also agreed with the plaintiff alfalfa farmers and sustainable agriculture and environmental organizations that contamination of conventional and organic alfalfa crops by the commercial planting of the RR alfalfa seed and pollen had a reasonable probability of causing an injury that could be recognized by federal courts. Even if conventional and organic alfalfa were not actually contaminated by gene flow from RR alfalfa, farmers would have to bear increased costs to protect and test their crops or find sources of non-GE alfalfa seed from areas with no GE alfalfa. This injury is sufficient to give the plaintiffs the opportunity to seek a legal remedy that would restrict gene flow from RR alfalfa to their crops.
The bad news is that the U.S. Supreme Court agreed with USDA that the lower court should not have issued an injunction that would prevent USDA from proposing a partial deregulation of RR alfalfa, with limited geographic scope and restrictions, before preparing the full EIS. Under this ruling, if plaintiffs prevail in a NEPA challenge to a federal agency action, the agency could adjust the scope of its action and issue a more limited regulation to try to avoid preparing an EIS. The burden would be on those challenging the action to launch another lawsuit against that limited action.
The Court’s ruling is also, unfortunately, an invitation to federal agencies to indulge in “project chopping.” This is the shorthand term for an agency trying to avoid comprehensive analysis of the cumulative impacts of major federal action on the human environment required by NEPA, simply by segmenting the action into partial actions to avoid full environmental review. With enough of these limited actions, a federal agency could take major federal action that in total imposes a significant impact on the environment without preparing an EIS. This flies in the face of well-established NEPA policy that requires that a federal agency responsible for environmental review must group together and evaluate as a single project all individual activities that are related on either a geographical or a functional basis, or are logical parts of a composite of contemplated actions.
USDA’s APHIS has not yet determined whether it will accept the invitation of the Court to prepare a regulation for a more restricted planting of RR alfalfa. The agency has announced its intention to complete the full EIS in time for the spring planting of alfalfa crops in 2011.