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U.S. Supreme Court to hear arguments in Monsanto case Tuesday
On Tuesday the U.S. Supreme Court will hear oral arguments in a case involving deregulation of genetically-modified alfalfa that will likely have long-term repercussions on how the government handles future incidents under the National Environmental Policy Act.
The case, Monsanto Co. v. Geertson Seed Farms, was elevated to the U.S. Supreme Court by Monsanto after two lower courts ruled that an injunction against further commercial use of Round-Up Ready Alfalfa was needed until the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) could develop and publish a full Environmental Impact Statement on the crop addressing concerns voiced by those who initially brought the case before the court.
Monsanto wants the the Supreme Court to determine if plaintiffs, under the National Environmental Policy Act, are exempt from showing a likelihood of irreparable harm to obtain an injunction, whether a court can issue such an injunction without conducting an evidentiary hearing, and if such an injunction can be based on “only a remote possibility of reparable harm.”
The court’s decision will impact all cases sought under the National Environmental Policy Act going forward because it will likely dictate a lower or higher standard that must be met for future challenges. Any decision, which should come by late June or early July prior to the U.S. Supreme Court summer recess, will also have an immediate impact on another case involving genetically-modified sugar beets that is making its way through the lower courts.
The potential long-term impact of the case has drawn a wide variety of opinions from the broader business sector and environmental advocacy groups.
Those who have filed briefs in support of Monsanto are:
- Pacific Legal Foundation
- American Sugarbeet Growers Association, U.S. Beet Sugar Association, National Corn Growers Association
- Chamber of Commerce of the United States of America, American Petroleum Institute, National Association of Home Builders, Croplife America
- Washington Legal Foundation, Allied Educational Foundation
- American Farm Bureau Federation, Biotechnology Industry Organization, National Alfalfa and Forage Alliance, American Seed Trade Association, National Cotton Council, National Potato Council, American Soybean Association, National Association of Wheat Growers
Those who have filed briefs in support of Geertson are:
- Union of Concerned Scientists, Center for Responsible Genetics, Dr. Steven R. Radosevich, Dr. Paul E. Arriola, Dr. John Fagan, Dr. E. Ann Clark, Dr. Don M. Huber, Caroline Cox
- People of the State of California ex rel. Edmund G. Brown Jr., Attorney General; Commonwealth of Massachusetts, Martha Coakley, Attorney General; State of Oregon, John R. Kroger, Attorney General
- Defenders of Wildlife, Humane Society of the United States, Center for Biological Diversity
- Natural Resources Defense Council, Prof. Craig N. Johnson, Prof. Michael C. Blumm, Prof. David W. Case, Prof. Jamison E. Colburn, Prof. William F. Funk, Prof. David K. Mears, Profs. Patrick A. Parenteau, Prof. John T. Parry, Prof. Melissa A. Powers, Prof. Mary C. Wood
- Cropp Cooperative, Montana Organic Association, National Cooperative Grocers’ Association, National Organic Coalition, Organic Farming Research Foundation, Organic Seed Alliance, Organic Seed Growers and Trade Association, Organic Trade Association, Western Organic Dairy Producers Alliance, United Natural Foods, Inc., Annie’s, Inc., Clif Bar & Company, Eden Foods, Inc., Nature’s Path Foods, Inc., Purist Foods, Inc., Stonyfield Farm, Inc., Straus Family Creamery
In its merits brief, counsel for Monsanto relies heavily on the 2008 SCOTUS ruling in Winter v. NRDC, which was authored by Chief Justice John Roberts and effectively divided the court. The case involved the legality of warfare training exercises conducted by the U.S. Navy off the coast of southern California in which mid-frequency active sonar was used. Environmental groups, led by the Natural Resources Defense Council, argued that use of the active sonar was known to cause harm to marine mammals — including ruptured eardrums and damage to small bones, physiological impairment and profound behavioral effects.
The Navy had issued an Environmental Assessment of its activities under NEPA but failed to file a full Environmental Impact Statement. The environmental groups sued on the basis of violation of federal laws, including NEPA and the Coastal Zone Management Act, and asked the court to halt use of the active sonar.
A district court decided in January 2008 to allow the Navy exercises to proceed with additional sonar restrictions. The Navy immediately filed an emergency case with the Ninth Circuit, and eventually the case made its way to the Supreme Court.
The Navy’s argument, which Monsanto is making in the current case before the Court, is that the lower courts had relied on “the mere possibility” of irreparable injury instead of definitely stating that such an injury will occur in the absence of injunctive relief. And, perhaps more importantly, the Navy argued that when the courts issued an injunction, it failed to consider the the harm that could be done to national security interests.
Monsanto’s arguments in its brief also speak of the economic harm that has been done to farmers who planted the modified alfalfa, the seed companies that had distributed it and its own commercial interests in bringing the product to the market.
This is important because, in its 24-page decision, the Supreme Court asserted that irreparable injury must be “likely” and not “possible” in the absence of an injunction, and that granting such an injunction is an extraordinary remedy that requires a “clear showing” of success by the plaintiff.
“The court of appeals approved an injunction that is so broad that it prohibits beneficial activities that pose no risk of harm whatsoever,” counsel for Monsanto wrote in their petition for review. “If not reversed, the Ninth Circuit’s holding threatens to make blanket injunctions all but automatic in NEPA cases arising in that circuit.”
Although the court appears to skirt the over-riding question of whether the Navy violated NEPA, it does address the law by citing that it imposes “only procedural requirements” aimed at researching and releasing information about environmental effects stemming from agency action. In the court’s opinion, the Environmental Assessment provided by the Navy appears to be good enough, even in absence of a full Environmental Impact Study.
Justices Ginsburg and Souter, in their dissenting opinion, take direct affront to this, calling Environmental Impact Statements a “core requirement” of NEPA. The two justices also approved environmental questions being decided on the possibility of irreparable harm, and said the courts should show flexibility in the context of such cases.
In the interim, APHIS has embarked on a full Environmental Impact Study and released its first draft of that document in November, which once again recommended the crop be deregulated and available for commercial use. The agency initially indicated it would accept comments through Feb. 16, 2010, but then extended that period through March 3. According to a spokeswoman for APHIS, the agency is continuing to review the comments it received and has “no anticipated date” for a release of the final EIS.
A final EIS, regardless of its final assessment of the modified alfalfa, is unlikely to impact a decision of the court, which has overturned at least five cases of interest to environmentalists just last year — four of those stemming from the Ninth Circuit. Of the cases involving NEPA that have been reviewed by the court, the law as written is zero for 13.
“Based on both the specific cases the court selected for review, and the court’s actual decisions in the cases, the overall effect of the rulings has been to weaken environmental protections across the board,” said John Echeverria, director of the Georgetown University Law Center’s Environmental Law and Policy Institute.
He attributed the 100 percent reversal rate on environmental-themed decisions during the 2009 term to “serious concern on the part of the court’s conservative majority about potential undue regulatory burdens on business.”
Alfalfa, which is primarily used for livestock feed, is a major crop grown on about 22 million acres of U.S. land. At the time of the 2007 injunction, the modified seed had been planted on roughly 1 percent of all U.S. fields, according to documents filed with the court by Monsanto.
Justice Stephen Breyer, who is associated with the liberal wing of the Court, will not take part in the Monsanto case because his brother, U.S. District Judge Charles Breyer, issued the initial ruling against Monsanto.