The Ninth Circuit Court of Appeals reversed on Friday the District Judge’s order that would have required genetically engineered (GE) sugar beet seed plants, a.k.a. stecklings, to be destroyed. Reviewing the information presented to it on appeal, the Court of Appeals disagreed with the lower court that Plaintiffs, Center for Food Safety, Organic Seed Alliance, Sierra Club and High Mowing Organic Seeds, met the legal standard for the issuance of an injunction. Circuit Judge Sidney R. Thomas, who penned the opinion, found that “[p]laintiffs have not demonstrated that the permitted steckling plants present a possibility, much less a likelihood, of genetic contamination or other irreparable harm.” Explaining further, the Appeals Court found that:
Plaintiffs’ allegations of harm hinge entirely on later stages of Roundup Ready sugar beet planting and production, … At the time Plaintiffs sought the preliminary injunction, none of the irreparable harms they sought to prevent were likely. … if a subsequent APHIS decision aggrieves them, they may challenge it and seek appropriate preliminary relief.
As the L.A.Times noted, Judge Thomas “tapped his inner literati” when he invoked colorful literary and historical references, stating, for example that “[t]he alleged irreparable harms are little more than an expression that ‘life finds a way’ …. However, an invocation to chaos theory is not sufficient to justify a preliminary injunction.” He also made references to Shakespeare’s Richard II, Olivier de Serres, the father of French agriculture, as well as an 18th century German scientist Andreas Marggraf.
While the Appeals Court decided on a narrow issue, namely, whether there was abuse of discretion by the lower court in ordering the destruction of beet stecklings, it recognized that the issue arises in a broader context noting that “this appeal presents a thin slice of a larger litigation.”
In January, USDA partially deregulated sugar beets but the commercialization of GE sugar beets is yet to be decided as the agency finalizes a court mandated environmental impact statement.
Last summer the District Court judge vacated the USDA’s Animal and Plant Health Inspection Service’s (APHIS) deregulation decision but in early September APHIS issued permits to four seed companies to plant stecklings of GE sugar beets, forcing the plaintiff coalition group to go back to court challenging the agency’s conduct. The Court ruled in favor of the coalition group on November 30, 2010, and issued a preliminary injunction directing the removal of Monsanto’s Roundup Ready seedlings. Removal was stayed pending an appeal.
“We’re disappointed, but it’s a preliminary decision,” said George Kimbrell, senior attorney at the Center for Food Safety, a lead plaintiff in the case. “This litigation is ongoing. It isn’t the final outcome of the case,” Kimbrell said.