Federal Judge Halts Planting of GM Sugar Beets For Now

Finding no way to spin an August 13, 2010 decision by Judge Jeffrey S. White, for the first time in a long time, Monsanto declined to comment. That’s because Judge White’s decision revoked the United States Department of Agriculture and Animal And Plant Health Inspection Service’s (“APHIS”) approval of  genetically modified Roundup Ready (“RR”) sugar beets produced by Monsanto.  Monsanto’s RR sugar beet has been engineered to withstand large doses of its herbicide, Roundup, and its active ingredient, glyphosate.

Sugar_beet_drilling,_Sawtry_Fen_-_geograph.org.uk_-_1240063_300px

Sugar beet drilling. Photo by Michael Trolove.

By way of background, the lawsuit, started in 2008, challenged APHIS’s decision to deregulate GM sugar beets without conducting an Environmental Impact Statement (“EIS”).  In September 2009, the Court sided with plaintiffs and ruled that the government’s decision to deregulate genetically engineered sugar beets without preparing an EIS violated the National Environmental Policy Act, 42 U.S.C. §§ 4321-4335 (“NEPA”) without specifying a remedy.  In March of this year, the Court denied plaintiffs’ application seeking a preliminary injunction, saying it would be too disruptive, but warned farmers to move towards using conventional seeds. At the August 13 hearing, plaintiffs sought to vacate APHIS’ deregulation decision, as well as an injunction, which would prohibit all further planting, cultivating, precessing or use of GM sugar beets.

The lawsuit was brought by Center for Food Safety, Organic Seed Alliance, Sierra Club, and High Mowing Organic Seeds. Defendants’ group consisted of Edward T. Schafer, in his official capacity as Secretary of the United States, Department of Agriculture, and Cindy Smith, in her official capacity as Administrator of APHIS.  There were also Defendant-Intervenors, parties who have clearly ascertainable interests and perspectives essential for a judicial determination, that included American Sugarbeet Growers Association, Ervin Schlemmer, Mark Wettstein, John Synder, and Duane Grant, American Crystal Sugar Company, the Amalgamated Sugar Company, Western Sugar Cooperative, Wyoming Sugar Company, LLC, United States Beet Sugar Association, Betaseed, Inc., Monsanto Company, Syngenta Seeds, Inc., and SESVanderHave USA, Inc.

In his decision, Judge White not only rescinded APHIS’s approval of GM sugar beets but he also scolded the Defendants as well as the government agency for not taking this issue more seriously. In response to the Defendants’ arguments that the Court simply invalidate the agency’s decision (i.e., send the issue of deregulation back to the agency), while letting the planting of GM sugar beets continue, the Court waived its judicial finger in their direction, calling out the Defendant parties for their failure to fully appreciate the consequences of GM sugar beets. The Court’s decision halts the planting of GM sugar beets until an EIS is conducted.

Here’s the legal skinny on the decision.

The Court ruled against Defendants and Defendant-Intevernors’ (“Defendants’ Group”) argument that the Court should remand the agency’s deregulation decision to it without vacating the deregulation decision on the basis that APHIS’s deficiencies were not that serious or numerous. In other words, the Defendants’ Group argued to the Court that even if the Court believed that the APHIS needs to rethink its deregulation decision, while the agency is rethinking its decision, the status quo should remain (i.e., permit the planting of GM beets to continue).  The Defendants’ Group also argued that it seemed certain that APHIS will affirm its decision to deregulate genetically engineered sugar beets upon remand.

The Court noted that while the Ninth Circuit has at times ruled that an agency’s decision or rule can be found unlawful without vacating the agency’s order (a.k.a.  remand without vacatur), those circumstances are limited to serious environmental injury, allowing the regulation to be left in place while the agency follows the necessary procedures.  Since the Court found that the Ninth Circuit has not enunciated the specific standard to use when evaluating whether an agency’s decision or rule can be found unlawful without vacating it, the Court applied the test set out by the D.C. Circuit, which held that “[t]he decision whether to vacate depends on the seriousness of the order’s deficiencies (and thus the extent of doubt whether the agency chose correctly) and the disruptive consequences of an interim change that may itself be changed.”

In ruling against Defendants’ Group, the Court specifically found that:

NEPA is a procedural statute designed to ensure comprehensive consideration of the environmental consequences of agency action. The fact that the Court has already found that APHIS failed to fully consider the potential consequences of deregulation and that Plaintiffs have shown that deregulation may significantly affect the environment demonstrates that APHIS’s errors are not minor or insignificant. Moreover, APHIS’s apparent position that it is merely a matter of time before they reinstate the same deregulation decision, or a modified version of this decision, and thus apparent perception that that conducting the requisite comprehensive review is a mere formality, causes some concern that Defendants are not taking this process seriously. (emphasis added).

The Court also denied Defendants’ Group request of a nine-month delay of a vacatur to give APHIS time to implement interim measures, finding that APHIS knew, as a result of the Court’s 2009 ruling, that the agency’s decision to deregulate RR sugar beets without conducting an EIS was invalid.  As such, the agency had more than sufficient time to implement interim measures but that it “but failed to act expediently.”

The Court also struck down another major argument that Defendants’ Groups were hanging their hat on: economic consequences.  The Court found that because the Ninth Circuit position with respect to remand without vacatur is limited to serious environmental injuries, it is not clear whether economic consequences is a factor a court may consider in environmental cases.

In addition to seeking an invalidation and vacation of APHIS’ deregulation decision, plaintiffs also sought an injunction that would have also banned the growing of the crops.   Being bound by a recent Supreme Court decision concerning an invalidation of an injunction in a GM alfalfa case, however, Judge White denied the plaintiffs’ request for a permanent injunction, holding that “additional and extraordinary relief of an injunction” was not needed if a less drastic remedy, such as a vacatur of APHIS’s deregulation decision, was sufficient to redress the plaintiff’s injury.  The Court, however, held that if, after the deregulation decision is vacated, plaintiffs can demonstrate that Defendants’ Group or other third parties have in fact violated the vacatur, they can apply to the Court for further redress.

The Court’s decision is limited to planting of GM sugar beets after the date of the decision as that is the relief plaintiffs sought in their papers.

The Court’s ruling vacating APHIS’ decision to deregulate GM sugar beets and remanding the matter back to AHPIS  is a victory as GM sugar beets are, at least until the EIS is finished, once again regulated articles.