Thursday, September 4, 2008

Geerston Seed Farms v. Monsanto Co.

Sep 2: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16458, 07-16492, & 07-16725. In this major ruling under the National Environmental Policy Act (NEPA) involving many Plaintiff and Defendant Appellees and Intervenors on both sides involving the controversial practice of genetically modified crops, in this case specifically herbicide resistant alfalfa manufactured by Monsanto.

The Monsanto Company (Monsanto) is a large-scale manufacturer of chemical products, including herbicides and pesticides. In the 1990s it began developing a variety of alfalfa that would be resistant to one of its leading herbicides. The United States Department of Agriculture, through the Animal and Plant Health Inspection Service (APHIS), approved the genetically modified alfalfa in 2005. This is an appeal from an injunction entered by the district court enjoining future planting of Monsanto alfalfa, called “Roundup Ready alfalfa,” pending the preparation by APHIS of an environmental impact statement (EIS). The injunction was sought by plaintiffs Geertson Seed Farms and Trask Family Seeds, conventional alfalfa-seed farms, together with environmental groups, because they fear cross-pollination of the new variety with other alfalfa, thereby possibly causing conventional alfalfa to disappear.

Monsanto and its licensee, Forage Genetics, Inc. (Forage Genetics), intervened on the side of the government defendants. Monsanto, Forage Genetics, and the government pursued the appeal. According to the Ninth Circuit, there are no issues of law and therefore the Court reviewed the case for "abuse of discretion," citing Idaho Watersheds Project v. Hahn, 307 F.3d 815, 823 (9th Cir. 2002).

The Appeals Court ruled in a split, 2-1 decision, "We affirm because the district court did not abuse its discretion in entering the injunction after holding one hearing on the nature of the violation of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332(C), and two hearings on the scope of injunctive relief, as well as reviewing extensive documentary submissions relating to an appropriate remedy. The injunction is limited in duration to the time necessary to complete the EIS. The existence of the NEPA violation is not disputed on appeal."

By way of background, when APHIS published its notice of the Monsanto petition for approval of Roundup Ready alfalfa in November 2004, it received 663 comments -- 520 of which opposed the petition and 137 of which supported it. Most of the commenting alfalfa growers and seed producers supported it because they said there was a demand for weed-free alfalfa, and Roundup Ready alfalfa would provide farmers a new option for weed control by allowing farmers to apply herbicide after weeds have germinated. Most of the academic professionals, agricultural support industries, and growers associations who commented supported the petition as well. Opponents of the petition, who included organic and conventional alfalfa growers, cited concerns that inadvertent gene transmission would occur, and that foreign and domestic markets may not accept products that cannot be guaranteed to be non-genetically engineered. They urged a full environmental evaluation through an EIS that would analyze the environmental effects of all the alternatives.

APHIS in June 2005 made a finding of no significant impact, concluded that it did not need to prepare an EIS, and unconditionally deregulated Roundup Ready alfalfa. Plaintiffs filed their lawsuit in February 2006, alleging violations of NEPA and other Federal statutes. The district court granted plaintiffs’ motion in February 2007, holding that APHIS had violated NEPA by deregulating Roundup Ready alfalfa without first preparing an EIS. The district court ruled APHIS had failed to take the required “hard look” at whether and to what extent the unconditional deregulation of Roundup Ready alfalfa would lead to genetic contamination of non-genetically engineered alfalfa.

The district court entered a preliminary injunction on March 12, 2007, enjoining all planting of Roundup Ready alfalfa and all sales of Roundup Ready alfalfa seed after March 30, 2007, which allowed farmers who were prepared to plant Roundup Ready alfalfa immediately, and who had already purchased the seed, to do so. After reviewing "voluminous evidentiary submissions from both sides," the district court entered its permanent injunction in May 2007. The injunction enjoined all planting of Roundup Ready alfalfa after March 30, 2007, pending APHIS’s completion of an EIS and decision on the deregulation petition.

In the appeal, much of the argument centered on whether an evidentiary hearing was required before entering the permanent injunction [See Idaho Watersheds Project, 307 F.3d 815]. The dissenting Justice said, "The district court’s failure to conduct the requisite evidentiary hearing prevents me from joining the majority’s opinion." However, the majority said, "We explained in Idaho Watersheds, however, that the key reason a further evidentiary hearing was not required was that the injunction would be in place only until the necessary environmental studies were conducted." The majority concluded, "The injunction involved only interim measures pending APHIS’s compliance with NEPA, and the district court considered extensive remedies-phase evidence. The court did not err in declining to hold a further hearing before entering the injunction pending the agency’s completion of environmental study the law undisputedly required it to perform before approving this product for unrestricted use."

Access the complete opinion (
click here).

Kentucky Waterways Alliance v. Johnson

Sep 3: In the U.S. Court of Appeals, Sixth Circuit, Case No. 065614. Plaintiffs, Kentucky Waterways Alliance, Sierra Club Cumberland Chapter, Kentuckians for the Commonwealth, and Floyds Fork Environmental Association, appealed the district court’s grant of summary judgment in favor of Defendants, U.S. EPA Administrator Stephen L. Johnson, the Commonwealth of Kentucky, the Kentucky Coal Association, Associated Industries of Kentucky, the Kentucky Chamber of Commerce, and the Kentucky League of Cities. Plaintiffs’ challenge was brought pursuant to the Administrative Procedures Act (APA), 5 U.S.C. § 701 et seq. (2000), regarding EPA’s approval, under § 303(c) of the Clean Water Act (CWA), 33 U.S.C. § 1313(c) (2000), of Kentucky’s regulatory implementation of its "Tier II water quality antidegradation rules."

The Appeals Court affirmed in part and reversed in part the district court’s opinion and order. Additionally, the Appeals Court vacated in part, EPA’s approval of Kentucky’s Tier II antidegradation rules, and remanded the matter to the EPA for further proceedings consistent with these opinions.

Tier II protection applies when “the quality of the waters exceed levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water.” 40 C.F.R. § 131.12(a)(2). For such waters, the regulation requires that their “quality shall be maintained and protected unless the State finds, after full satisfaction of the intergovernmental coordination and public participation provisions of the State’s continuing planning process, that allowing lower water quality is necessary to accommodate important economic and social development in the area in which the waters are located.” 40 C.F.R. § 131.12(a)(2). However, “[i]n allowing such degradation or lower water quality, the State shall assure water quality adequate to protect existing uses fully.” 40 C.F.R. § 131.12(a)(2).

According to the Sixth Circuit, "Kentucky’s Tier II exemption for coal-mining discharges was not ambiguous. The antidegradation regulations stated, in explicit terms, that Tier II review 'shall not apply' to coal mining discharges regulated under existing regulations. . . Those existing regulations do not require socioeconomic review. Indeed, when the EPA first queried the State on socioeconomic review for coal-mining discharges, the State responded that there was no such review. . . Only after further inquiries from the EPA did Kentucky adopt a starkly different position -- that its regulations (it did not cite a particular one) compelled a socioeconomic review for each proposed discharge. . . This securing an informal commitment from a state agency rather than requiring the state to amend its regulations violates the federal approval procedure established by 33 U.S.C. § 1313(c)(3) -- the EPA either approves or disapproves the regulations proposed by a state."

The Appeals Court also said, "Enforceability also argues against the EPA’s reliance on informal state commitments." Citing two precedent-setting cases, the Appeals Court ruled, "Because the EPA relied on an informal Cabinet commitment to approve Kentucky’s Tier II exemption for coal mining discharges, we find that the agency’s approval was 'not in accordance with law.' 5 U.S.C. § 706(2). Accordingly, we hold that this exemption too requires remand to the EPA for reconsideration."

Access the complete opinion (
click here).