Ban On GE Sugar Beets Not Ruled Out, But Planting Goes Forward

On March 16, 2010, a California District Judge, Jeffrey White, denied plaintiffs’ request for a preliminary injunction that would have halted the planting of GE sugar beets, thereby allowing this season’s planting to go forward.

But it is not all bad news for the coalition of plaintiffs. The Court was clear in stating that:

The parties should not assume that the Court’s decision to deny a preliminary injunction is indicative of its views on a permanent injunction pending the full environmental review that APHIS is required to conduct. Rather, while the environmental review is pending, the Court is inclined to order the [group of growers, seed companies, and other defendants] to take all efforts, going forward, to use conventional seed.

Sugar_beet-sprout_scaledWhile the Court’s decision, understandably, leaves many environmental groups and consumers, including GMO Journal, unhappy, it also suggests that had Plaintiffs applied for the ban earlier, they would have received the such relief sought.  Moreover, the language quoted above suggests that the Court may be more sympathetic during the permanent injunction hearing that is currently scheduled for July 9, 2010, during which, the Judge stated, “the balance … may likely shift… .”

Significantly is the finding by the Court that Plaintiffs met two of the three elements for granting a preliminary injunction.  In order for a preliminary injunction to issue, a party must demonstrate the likelihood success on the merits, irreparable harm, and that in balancing equities, an injunction would not harm the party against whom the injunction is sought.   The Court found that Plaintiffs satisfied the first two elements.

With respect to the likelihood success on the merits element, the Court found that Plaintiffs “have done more than shown a likelihood of success on the merits.” Indeed, the Court held that Plaintiffs have succeed on the merits precisely because “[b]y order dated September 21, 2009, the Court has already found, …, that Defendants have violated [the National Environmental Policy Act] by failing to conduct an [Environmental Impact Statement] before deregulating genetically engineered sugar beets.”

Second, the Court found evidence of irreparable harm, an element considered by many legal experts as the most crucial in injunction cases and which bodes well for Plaintiffs when they seek a permanent injunction. In finding irreparable harm, the Court relied on the statements made by Jay Miller, the product manager of one of the defendants, Betaseed, who admitted that “[n]o matter how careful a seed producer is, when the same facility is being used to process and ship both [genetically engineered] and conventional seed, there is no way to completely prevent conventional seed from being found in shipments of [genetically engineered] seed, and vice versa.” The Court also found it significant that genetically engineered sugar beet stecklings were discovered in a large pile of compost or potting soil being sold at a nursery in Oregon. This demonstrated to the Court that genetically engineered sugar beets may not be always be contained and may indeed contaminate conventional sugar beets, Swiss chard, or table beets.

Furthermore, the Court also found it significant that there have been instances of contamination and mixing of other other genetically engineered crops, such as corn, cotton, soybean and rice with conventional crops.  This mixing or contamination for soybean, for example, occurred despite the fact that soybeans are largely self-pollinating.

All these factors led the Court to conclude that Plaintiffs have demonstrated irreparable harm.

But while finding that Plaintiffs have satisfied two of the three elements, the Court held that balancing of the equities weighs in favor of the defendants, if only for purposes of the preliminary injunction. Detrimental to Plaintiffs’ case was waiting for five years after the sugar beets were deregulated by US Department of Agriculture’s Animal and Plant Health Inspection Services, a subdepartment which regulates GMOs.

And while analogies of the sugar beet case can be made to the alfalfa case (i.e., Geertson Seed Farm v. Johannes), in which Judge Breyer granted a preliminary injunction to halt the planting of GE alfalfa, many forget that in Geertson, Judge Breyer did in fact allow those who had already purchased the genetically engineered alfalfa seed and intended to plant them within the next three weeks to proceed with the planting. The Geertson Court merely preliminarily enjoined those growers who had not yet purchased or did not have imminent plans to grow genetically engineered alfalfa from switching over from conventional to genetically engineered alfalfa.

This is not the case here, where the preliminary injunction, had it been issued, would have banned farmers who already purchased seeds and were planning on immintently planting them.  And while GMO Journal would have preferred for the ban to issue, the issue here is that Plaintiffs waited too long to file for the preliminary injuction which led the Court to find that the equites tipped in favor of the defendants. The Court found that:

Plaintiffs here did not move for a preliminary injunction until five years after genetically engineered sugar beets were deregulated, three years after this case was filed, and four months after the Court granted Plaintiffs’ motion for summary judgment on the merits. During the time in which genetically engineered sugar beets have been deregulated and Plaintiffs did not move for a preliminary injunction, the industry has overwhelmingly converted to the use of genetically engineered sugar beets. Ninety-five percent of sugar beets currently being grown and processed are genetically engineered. Counsel represented at the hearing on the motion for preliminary injunction that 99.9% of the seed that has been or will be planted this spring has already been purchased and almost all of the seed has been or will be delivered by the end of March.

And while Plaintiffs may have had strategic litigation reasons for waiting (e.g., wait for precedential decision in Geertson before proceeding in the sugar beet case; thinking that the fact that 95% of the sugar beets industry is genetically engineered will play in their favor, etc.), the Court held that because economic impact of such a shortage would be dramatic and wide-spread, the preliminary injunction should not issue.

Biotech industry, however, should not gloat, and the Court’s decision is, by far, a check-mate for it.  Indeed, most of the decision suggests that Plaintiffs have a sympathetic audience with the court.  Plaintiffs may not have obtained the preliminary injunction but they may yet be successful at the permanent injunction stage.