April: while this case may appear to be about GE alfalfa contaminating organic crops, it has a secondary, and in my opinion, worse outcome.
Monsanto is petitioning for an injunction to stop any future law suit against them for anything. This is the worst part, as no one could ever take them to court again for anything: this is very broad: crop damage, human diseases, environmental failures and chemical contamination.
What does this mean? Now we can only sit back and watch, as Monsanto can now do whatever they want, to whomever they please. And we can’t do a thing about it, legally.
Here is a lengthy post filled with information about the beginnings of this historic case. Remember fellow Canadians, this could be us. Bees don’t need passports. We wait on the edge of our seats to hear the outcome….
Supreme Court to take first look at Genetically Modified Crops in Case
with NEPA Implications
The New York Times, USA by Gabriel Nelson 22.04.2010
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
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 non-modified crops
as interchangeable, but the lower courts’ decisions in this case broke
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
‘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
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 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).
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 re-litigate 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 (US Court of Appeals Geerston vs Monsanto) to read the 9th Circuit’s decision.
Click here (Deregulate GM alfalfa: US District Court Decisions) to read the district court’s decision.