May 17: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-15052. Appealed from the United States District Court for the Northern District of California. The panel affirmed the district court's summary judgment in favor of Federal officials and intervenor-defendants, comprised of corporate seed manufacturers and industry trade groups, in an action brought by environmental groups and farmer organizations challenging the Record of Decision issued by the United States Department of Agriculture's (USDA's) Animal Plant and Health Inspection Service (APHIS) unconditionally deregulating Roundup Ready Alfalfa, a plant genetically engineered or modified by the Monsanto Company.
The Appeals Court explains that the appeal represents another chapter in USDA's regulation of Roundup Ready Alfalfa (RRA). RRA is a plant genetically "engineered" or "modified" by the Monsanto Company and Forage Genetics International to be resistant to the herbicide glyphosate, which Monsanto sells under the trade name Roundup. Farmers do not normally apply an herbicide like Roundup to alfalfa fields because the herbicide kills not only the weeds, but also the alfalfa crop. RRA's tolerance to Roundup thus allows farmers to control weeds through herbicide application without harming the alfalfa plant. Monsanto markets RRA and Roundup together as a single crop system. From the outset, Monsanto and Forage Genetics's attempts to introduce RRA have been met with criticism and lawsuits from environmental groups concerned about the adverse effects that the plant may have on the environment and the organic food industry.
Concerned about these environmental harms, the plaintiffs in this appeal argue that APHIS's unconditional deregulation of RRA was improper for three reasons: First, APHIS violated the Plant Protection Act (PPA) and the Administrative Procedure Act (APA) in concluding that RRA was not a plant pest and failing to consider if RRA was a noxious weed; second, because of these errors in statutory interpretation, APHIS violated the Endangered Species Act (ESA) when it failed to consult with the Fish and Wildlife Service (FWS) about RRA's effects on endangered and threatened species; and third, APHIS also violated the National Environmental Policy Act (NEPA) by unconditionally deregulating RRA without considering the option of partially deregulating the crop, an action that the agency had included in the EIS.
After the plaintiffs filed this action against the government in the district court, Monsanto, Forage Genetics, the corporate seed manufacturers and industry trade groups intervened as defendants. The district court upheld the agency's deregulation decision in a published opinion. Ctr. for Food Safety v. Vilsack, 844 F. Supp. 2d 1006 (N.D. Cal. 2012). It held that RRA is not a "plant pest" within the meaning of the statute, and that the agency's deregulation of the plant therefore did not violate the ESA or NEPA, because the agency's jurisdiction did not extend to organisms that are not plant pests.
The Appeals Court affirmed saying, "because the statute does not regulate the types of harms that the plaintiffs complain of, and therefore APHIS correctly concluded that RRA was not a 'plant pest' under the PPA. Once the agency concluded that RRA was not a plant pest, it no longer had jurisdiction to continue regulating the plant. APHIS's lack of jurisdiction over RRA obviated the need for the agency to consult with the FWS under the ESA and to consider alternatives to unconditional deregulation under NEPA. See Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 665 (2007). The district court thus properly entered summary judgment in favor of the defendants."
Access the complete opinion (click here). [#Agriculture, #Toxics, #CA9]
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