Supreme Court decides on Alfalfa case

In what (for me) seemed like no time at all, the Supreme Court of the United States (SCOTUS) has issued its ruling on the Roundup Ready Alfalfa case. In a landslide 7:1 ruling (with one recusing), the high court has lifted the nationwide ban on planting genetically engineered herbicide-tolerant alfalfa. What does this mean for GE alfalfa and sugar beet plantings that have been affected by the courts?
Although the social media chatter over the case was mostly characterizing it as crucial to win to “stop” GE alfalfa, it was really more about what the proper course of action is for the GE regulatory process, and whether a court can issue an injunction against planting GE crops while the environmental impact statement (EIS) is being drafted, without having to provide evidence of harm. For more background information, read my previous post about the case. In essence, the court was considering whether the lower court was right in “remanding” the GE alfalfa back to the USDA to determine whether it was ok to plant, while also issuing an injunction preventing them from saying it was ok to plant until the EIS is complete.
SCOTUS ruled that the lower court acted wrongly by remanding and enjoining at the same time.

The District Court abused its discretion in enjoining APHIS from effecting a partial deregulation and in prohibiting the planting of RRA pending the agency’s completion of its detailed environmental review.
(…)
Most importantly, respondents cannot show that they will suffer irreparable injury if APHIS is allowed to proceed with any partial deregulation, for at least two reasons. First, if and when APHIS pursues a partial deregulation that arguably runs afoul of NEPA, respondents may file a new suit challenging such action and seeking appropriate preliminary relief. Accordingly, a permanent injunction is not now needed to guard against any present or imminent risk of likely irreparable harm. Second, a partial deregulation need not cause respondents any injury at all; if its scope is sufficiently limited, the risk of gene flow could be virtually nonexistent. Indeed, the broad injunction entered below essentially pre-empts the very procedure by which APHIS could determine, independently of the pending EIS process for assessing the effects of a complete deregulation, that a limited deregulation would not pose any appreciable risk of environmental harm.

This sort of ruling was suggested by reading the transcript of the hearing – it sounded like they were interested in the double-barrier that the lower court had erected. By sending the alfalfa back to the USDA the lower court was saying that the USDA needed to figure out what to do about the alfalfa and whether it can be planted in the future. But by also issuing an injunction the court was saying that the USDA could not decide what to do according to its procedures unless the EIS is fully complete, which means no partial deregulation, which would be allowing some RR alfalfa plantings to go forward. In a bizarre twist, the lower court also said that farmers currently growing it could continue growing it. So essentially the court was saying that the USDA could not decide to allow some farmers to grow it while the EIS is pending because of environmental risk, but the court could. The SCOTUS latched onto that contradiction in their ruling:

First, the impropriety of the District Court’s broad injunction against planting flows from the impropriety of its injunction against partial deregulation. If APHIS may partially deregulate RRA before preparing a full-blown EIS—a question that we need not and do not decide here—farmers should be able to grow and sell RRA in accordance with that agency determination. Because it was inappropriate for the District Court to foreclose even the possibility of a partial and temporary deregulation, it necessarily follows that it was likewise inappropriate to enjoin any and all parties from acting in accordance with the terms ofsuch a deregulation decision.

And to sum it all up:

In sum, the District Court abused its discretion in enjoining APHIS from effecting a partial deregulation and in prohibiting the possibility of planting in accordance with the terms of such a deregulation. Given those errors, this Court need not express any view on whether injunctive relief of some kind was available to respondents on the record before us. Nor does the Court address the question whether the District Court was required to conduct an evidentiary hearing before entering the relief at issue here. The judgment of the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.

So what does this mean about GE alfalfa plantings, can farmers just start buying and planting the herbicide-tolerant legume? No, what was lifted by the court was the injunction that prevented the USDA from allowing some farmers to plant GE alfalfa under partial deregulation. The court did not touch on the issue of whether it was right to re-regulate the alfalfa, or on the issue of whether an evidentiary hearing was required. What they did do was determine that the broad injunction was not justified by the National Environmental Policy Act (NEPA), and is saying that it is up to the USDA to assess whether it can partially deregulate the alfalfa should it choose to do so. Until that happens, no new alfalfa plantings can happen.
The dual remand/injunction nature of this situation has led to a lot of confusion in the first few hours of the news coming out. While the traditional news sources are getting it mostly right as lifting the ban, others are saying almost the opposite. The Center for Food Safety, the anti-GE lawyer group that led the legal battle in the first place, is also calling it a victory! Their statement has been carried through social media networks quickly. They said:

The Center for Food Safety today celebrated the United States Supreme Court’s decision in Monsanto v. Geerston Farms, the first genetically modified crop case ever brought before the Supreme Court.  Although the High Court decision reverses parts of the lower courts’ rulings, the judgment holds that a vacatur bars the planting of Monsanto’s Roundup Ready Alfalfa until and unless future deregulation occurs.  It is a victory for the Center for Food Safety and the Farmers and Consumers it represents.
“The Justices’ decision today means that the selling and planting of Roundup Ready Alfalfa is illegal.  The ban on the crop will remain in place until a full and adequate EIS is prepared by USDA and they officially deregulate the crop.  This is a year or more away according to the agency, and even then, a deregulation move may be subject to further litigation if the agency’s analysis is not adequate,” said Andrew Kimbrell, Executive Director of the Center for Food Safety. “In sum, it’s a significant victory in our ongoing fight to protect farmer and consumer choice, the environment and the organic industry.”
In the majority opinion written by Justice Samuel Alito, the Court held: “In sum…the vacatur of APHIS’s deregulation decision means that virtually no RRA (Roundup Ready Alfalfa) can be grown or sold until such time as a new deregulation decision is in place, and we also know that any party aggrieved by a hypothetical future deregulation decision will have ample opportunity to challenge it, and to seek appropriate preliminary relief, if and when such a decision is made.” (Opinion at p. 22).The Court also held that:

• Any further attempt to commercialize RRA even in part may require an EIS subject to legal challenge.
• The Court further recognized that the threat of transgenic contamination is harmful and onerous to organic and conventional farmers and that the injury allows them to challenge future biotech crop commercializations in court.

Uh oh… whenever you see an ellipses (…) check what was removed. Here is the full paragraph:

In sum, we do not know whether and to what extent APHIS would seek to effect a limited deregulation during the pendency of the EIS process if it were free to do so; we do know that the vacatur of APHIS’s deregulation decision means that virtually no RRA can be grown or sold until such time as a new deregulation decision is in place, and we also know that any party aggrieved by a hypothetical future deregulation decision will have ample opportunity to challenge it, and to seek appropriate preliminary relief, if and when such a decision is made. In light of these particular circumstances, we hold that the District Court did not properly exercise its discretion in enjoining a partial deregulation of any kind pending APHIS’s preparation of an EIS. It follows that the Court of Appeals erred in affirming that aspect of the District Court’s judgment.

The court did not rule that no RR alfalfa can be grown, this paragraph says that the court knows what the lower court ruled and its implications. So that’s nothing new. The whole previous section is filled with discussion of what exactly was meant by the lower court’s ruling, so this is a summary of that section. The court did not address whether the lower court was right in sending the alfalfa back to the USDA, from page 3 of the syllabus:

Because petitioners and the Government do not argue other-wise, the Court assumes without deciding that the District Court acted lawfully in vacating the agency’s decision to completely deregu-late RRA. The Court therefore addresses only the injunction prohibiting APHIS from deregulating RRA pending completion of the EIS, and the nationwide injunction prohibiting almost all RRA planting during the pendency of the EIS process.

As if that was not enough spin for the Center For Food Safety to use to declare victory, they also appear to have invented a new part of the ruling that is not even in there.

Any further attempt to commercialize RRA even in part may require an EIS subject to legal challenge.

The court did NOT rule on what would be required for partial regulation, in fact they emphatically declared that they were not ruling on that issue:

We do not express any view on the Government’s contention that a limited deregulation of the kind embodied inits proposed judgment would not require the prior preparation of an EIS.
(…) [note- you can check my ellipses if you want – nothing important left out]
Because APHIS has not yet invoked the procedures necessary to attempt a limited deregulation, any judicial consideration of such issues is not warranted at this time.(p19)

In fact, the ruling did mention in several places that a partial deregulation would involve an Environmental Assessment or EA (less involved than EIS). Page 9: (emphasis added)

In order for a partial deregulation to occur, respondents argued, the case would have to be remanded to the agency, and APHIS would have to prepare an EA “that may or may not come out in favor of a partial deregulation.”

And Page 10:

Nor is any doubt as to whether APHIS would issue a new EA in favor of a partial deregulation sufficient to defeat petitioners’ standing.

And most importantly, on page

If the agency found, on the basis of a new EA, that a limited and temporary deregulation satisfied applicable statutory and regulatory requirements, it could proceed with such a deregulation even if it had not yet finished the onerous EIS required for complete deregulation.

Keep in mind this is not the SCOTUS ruling that an EA is the appropriate action for partial deregulation though they seem to assume it, and they are certainly not saying that an EIS “may be required.” Granted, an EA could be challenged legally, but there is a difference between an EA and an EIS that goes beyond just how they are spelled.
I have left a comment on the CFS website asking for them to point out where in the decision they supposedly rule on this issue, but I expect, as before, that my comment will be moderated out of existence. Here it is for posterity:

Hi, I’m a little unclear about one statement made above about the SCOTUS ruling:
“Any further attempt to commercialize RRA even in part may require an EIS subject to legal challenge. ”
My reading of the ruling indicates otherwise – they said on the bottom of page 19:
“We do not express any view on the Government’s contention that a limited deregulation of the kind embodied in its proposed judgment would not require the prior preparation of an EIS.”
They also mention that a partial deregulation would involve an EA, not an EIS. Could you please point me to the passage in the ruling that supports what was included in your post?

Keep in mind, this press release was issued from the same lawyers that lost the case. As Mica Veihman from the Monsanto blog quips on twitter: “Wonder what Center for Food Safety’s statement would have said if the decision were the reverse. Hmmm…..” Still, you can’t fault them for being optimistic, just for making stuff up.
There is a silver lining for their side, however. The court did decide that conventional non-GE farmers and organic farmers have standing to claim that they can be harmed by cross-pollination of GE crops in court even if the cross-pollination has not yet occurred:

For example, respondents represent that, in order to continue marketing their product to consumers who wish to buy nongenetically-engineered alfalfa, respondents would have to conduct testing to find out whether and to what extenttheir crops have been contaminated. (p11)
Such harms, which respondents will suffer even if their crops are not actually infected with the Roundup ready gene, are sufficiently concrete to satisfy the injury-in-fact prong of the constitutional standing analysis. (p13)

While you could say they are harmed by doing additional testing, at the same time they are charging more for such ‘verified’ food via the Non GMO Project. As standing was necessary for the merits of the case to be addressed at all, it is a thin silver lining to those that want to use the desire of some farmers not to grow any GE plants at all as a means to prevent others from growing any at all. And the level of risk of harm was determined by the court not to be sufficient for an injunction.
So what other implications will there be for GE crops, like sugar beets? They, too, have been sent back to the USDA for a full EIS rather than just an EA. It appears that although the court in that case did not yet grant an injunction against the sugar beets, the judge indicated it was possible, which this could prevent . It could mean that farmers could continue to grow GE sugar beets under partial deregulation despite the fact that the USDA has to draft an EIS for complete deregulation of the beets. The alfalfa is nearer to approving its EIS than the beets, so as I said before the implications for the beets will probably be greater than the alfalfa.

It seems that the USDA may change its policy of doing the Environmental Assessment before the Environmental Impact Statement, so if that is the case I doubt many other crops being affected by this sort of thing. Except, perhaps, if the CFS or someone else successfully gets a court to reject an EIS and send it back to the USDA, this ruling could probably affect partial deregulation in that case.
Finally, as a 7:1 ruling, this is not a split-decision “blame Clarence Thomas for working for Monsanto 30 years ago” situation. (Which as a more legally-educated science blogger Ed Brayton confirms is not an issue.) This is an overwhelming ruling against the injunction preventing partial deregulation of the alfalfa, and it could set a precedent for lower courts on how they are able to determine what the USDA can or cannot do. The extreme measures of an injunction were ruled as not warranted in this case, which could affect others.
I hope this clears things up, and while the CFS continues to call their defeat a victory, I don’t think it will actually be added to their list of victories. The ban was defeated, not upheld.
It was so ordered.

More resources:

• Monsanto Press Release
• CFS Press Release
• BusinessWeek
• Reuters (on NY Times)
• Saint Louis Dispatch
• SCOTUS Wiki

Disclaimer: I am not a lawyer. This is not legal advice. Information purposes only and yadda yadda yadda. Please correct any misunderstandings in the comments.