Supreme Court decides on Alfalfa case

Supreme Court of the United States (Source: SupremeCourt.gov)

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.

Source: Wikimedia Commons

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:

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.

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Karl is a Ph.D. Candidate in Plant Breeding and Plant Genetics at UW-Madison. In addition to his research on the genetics of sweet corn, he is also completing a minor in science communication and is working on several media projects about plant breeding. His favorite produce might just be squash.


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18 comments to Supreme Court decides on Alfalfa case

  • Thanks very much for figuring out what has actually happened here. It seems to me that people (including me) are very confused about what an EA and an EIS are. Back when the big news was RR sugar beets, some people were all excited about the USDA contemplating deregulation of the beets without ever considering the environmental impact, when they did consider it in the EA and decided that it wasn’t going to be a big deal since we already have the RR gene in other species, so they didn’t do the EIS (I talked about this a bit in No risk assessment for sugar beets?). At least in this case, there is a difference because RR alfalfa will be the first perennial RR crop, and alfalfa is a bee-pollinated crop.

    I’m very frustrated by the Center for Food Safety’s willingness to bend the truth. As I’ve said before, if they have to lie to get their point across, it might not be a very strong point in the first place. I’m sure they’ll add this to their list of victories. Side note – what the heck is that logo supposed to be? It looks like an ear of corn that has corn borer damage. Maybe it’s organic non-Bt corn? I’m also amused by the milk carton with the picture of a cow on the side. Is the cow a missing child? Anyway….

    If anyone’s looking for a summary of Round Up Ready alfalfa, the University of California Department of Agriculture and Natural Resources has an excellent document: Roundup Ready Alfalfa: An Emerging Technology (pdf). While the decision today has nothing to do with the biology of alfalfa or any other science-related findings – there are some bloggers talking about how farmers will be able to sue for risk of gene flow. The risk is there, but can be easily mitigated by distance, as described in this document on page 6. In short, 500 meters reduces gene flow to 1.5%. In a reseeding stand, those genes will only persist at very low levels (<1.5% of all new plants) because in a field that isn't sprayed with Round Up, there is no selection pressure for plants to have the gene.

    Tom Laskawy over at Grist purports to have a better analysis than the mainstream media (or whatever NY Times is called these days), I’m having a hard time cutting through the smugness to determine whether he’s reporting reality or not.

  • Thanks, Anastasia, as you probably noticed behind the scenes I had a post I intended to write about the SCOTUS case analyzing the transcript (which is not very long). So luckily in that process I picked up on what the case was about. I should post those notes come to think of it.

    Tom Laskawy obviously did not read the ruling, he is getting his information second-hand. Case-in-point: He seems to think that the supreme court ruling has declared that cross-pollination is ILLEGAL:

    The Supreme Court now accepts that this phenomenon in and of itself is harmful and illegal under current environment protections.

    Talking about having standing in a case about gene flow is not equal to saying gene flow is illegal. He also glossed over the part about whether Monsanto could sell seeds for planting this fall – they can, if the USDA partially deregulates it, which Tom apparently missed out on by not reading the ruling.

  • It’s funny: when the case was heard everyone was “Oh, god, I hope they stop Monsanto!!1!”. And the fact that this didn’t stop Monsanto, and that Monsanto is content with this, seems to be escaping the same people.

    But how odd for both sides to claim victory in a SCOTUS ruling. I don’t think I’ve ever seen that before.

  • Re Mary:
    Maybe lowered expectations?

  • But how odd for both sides to claim victory in a SCOTUS ruling. I don’t think I’ve ever seen that before.

    Maybe not on a supreme court ruling, but I’m pretty sure Schmeisser was touted as having won multiple of his cases – not all that uncommon

  • Eric Baumholder

    It’s good news that the court views gene flow as “infection” and “contamination” only from the perspective of standing, not as proof of damage per se.

    Definition of ‘standing’: “Basically, a plaintiff must have suffered some direct or substantial injury or be likely to suffer such an injury if a particular wrong is not redressed.”
    http://legal-dictionary.thefreedictionary.com/standing

    It is of course true that not everyone with standing actually wins their case. Standing means you have your day in court, and that’s it.

    Even so, that doesn’t mean this is totally good news. It means that anyone who gets adventitious presence of a transgene has standing to sue — and standing is close enough to actual damage to be a dangerous notion in this context.

    And who knows how many potential gene-flow lawsuits are out there? Over in Germany, right now, they’re in the middle of destroying tens of thousands of acres planted to corn because of an 0.01% presence of an unapproved variety.

    Other bad news: the court was willing to adopt ‘infect’ and ‘contaminate’ as descriptive terms for gene flow/outcrossing.

    Still worse news: the court is willing to consider economic damage from gene flow. The economic damage inflicted on organic crops, for example, would actually be self-inflicted; an organic farmer could produce a 100% GMO crop and *not* lose certification, as long as the GMO seed was planted unintentionally. But a grocery store could still refuse the crop, also voluntarily — and there’s your economic damage.

    And completely bad news: the court showed it is willing to consider gene flow as ‘environmental damage’. A farm field is *not* ‘the environment’, and the plants grown there are not natural. Unless you have a big problem with weed control. There are over 200 varieties of alfalfa seed on the market, all of them are unnatural products of forced evolution, and all of them ‘infect’ each other (sometimes on purpose). Considering a transgene ‘on the loose’ among these is not an environmental issue in any reasonable conception of agriculture. Even the emergence of herbicide-resistant ‘superweeds’ is not an environmental impact — they are only issues in artificially-managed farm fields. They do not rise up to invade our forests.

    So, while this case had a reasonable outcome, it left the door open for all sorts of nasty, burdensome litigation, with outcomes impossible to forecast.

  • Eric – You said: “It means that anyone who gets adventitious presence of a transgene has standing to sue — and standing is close enough to actual damage to be a dangerous notion in this context.”

    That’s incorrect. The Supreme Court did NOT give legal standing for lawsuits or injury claims as the result of cross-pollination or gene flow between conventional/organic alfalfa and biotech alfalfa. What the court said is that litigants have constitutional standing to challenge the government’s regulatory process. Those are completely different.

  • Eric Baumholder

    Mica,

    The court seems not to have made that distinction in this case, and in fact, appears to suggest that the distinction makes no diference:

    “Respondents now seek injunctive relief in order to avert the risk of gene flow to their crops – the very same effect that the District Court determined to be a significant environmental concern for purposes of NEPA. The mere fact that respondents also seek to avoid certain economic harms that are tied to the risk of gene flow does not strip them of prudential standing. In short, respondents have standing to seek injunctive relief.”

    Note the last two sentences: with or without NEPA, the respondents have standing to ask for injunctive relief from harms caused by gene flow. If you accept the theoretical possibility that gene flow can cause harm, you have to accept the possibility that a jury or judge would agree that it’s damaging. In fact, that’s exactly what the trial court decided in this case.

  • Eric, the passage you quoted above seems to support Mica’s interpretation in that it is talking about standing for injunctive relief, not injury or damage. While you could make a theoretical connection between the two, the court did not rule on the issue of standing for injury because injury was not part of the case.

  • Eric Baumholder

    Dr. von Mogel,

    The purpose of seeking an injunction is not so much that an injury has occurred, as to prevent an injury from happening. Thus, injury is at the heart of the case — in one element, the ‘irreparable harm’ which would be caused by gene escape into ‘the environment’ (which appears to mean ‘into a neighboring field’) from whence it cannot be recalled, etc. The two lower courts accepted this uncritically, and the Sup. Ct. seems similarly inclined when it uses terms like ‘infect’ and ‘contaminate’.

    The Court says, literally, “In short, respondents have standing to seek injunctive relief.” That’s period, full stop.

    Of course, whether you actually get injunctive relief is another thing. Not entirely, of course, because they deal with the same factual subject-matter.

    It bears observing that the NEPA issue was not before the Court; the petitioners did not pursue that line of appeal. The remaining issues are, inter alia, whether to issue an injunction to prevent RRA from ‘destroying a non-GM seed business”, which states a colorable claim under common law in any US jurisdiction, without reference to any statute or regulation.

  • Eric Baumholder

    Now that the US Supreme Court has given implied permission for prevention/punishment of ‘gene flow into the environment’ via Federal jurisdiction, we have the below. You heard it here first.

    U.S. lawmakers ask USDA to deny biotech alfalfa
    Reuters
    June 23, 2010
    http://www.reuters.com/article/idUSN2324309720100623

    [redacted]

    * U.S. lawmakers call for continued ban on biotech alfalfa

    * Say USDA has “ignored” regulatory authority

    * Say U.S. organic dairy industry threatened

    More than 50 U.S. lawmakers are calling on the U.S. Agriculture Department to keep Monsanto’s biotech alfalfa out of U.S. farm fields, despite a Supreme Court ruling this week that cleared the way for the government to allow at least limited planting pending environmental reviews as Monsanto (MON.N) is seeking.

    The letter to Vilsack said that there is strong evidence the biotech alfalfa can and will contaminate conventional alfalfa fields, and could spell disaster for the organic dairy industry by contaminating the feed fed to organic dairy cows.

  • Re Eric:

    I don’t think we really disagree, actually. I am saying that the reason behind giving standing for injunctive relief can be tied to other issues in court, such as injury, however the SCOTUS did not rule on those other issues in this case. It will add fuel to the litigation flames, however on the flipside standing was ALSO given to Monsanto as a party that would be harmed by an injunction. Extending that as one would the standing of the parties that could make harm claims due to gene flow, and you can say that those companies would have harm claims against preventing the commercialization of their transgenic crops as well. Although I am no lawyer, I don’t think it has given either side any more ground than the other on the issue of standing. The CFS and its lawyers argued that Monsanto did not have standing, just like Monsanto argued that the other party did not have standing and the court ruled that both do.

    I do share your concern about the use of the loaded terms “infect” and “contamination” in the ruling.

    The Vilsack letter was in circulation before the court decision came, and although I think it was mainly intended to address full commercialization, its release right now suggests that they stepped up the announcement to try to prevent partial commercialization.

  • Andre

    1. Very informative post and string of comments.

    2. For my part, I would not read too much into the decision, nor would I venture any suggestion as to the course taken in a future ruling. The SCUS is to some extent bound to the language and arguments deployed by the parties, and the lower courts.

    3. Nevertheless, I am somewhat puzzled by the dissenting opinion which started with an uncritical regurgitation of the anti-GMO arguments.

    4. Looking at the future, there are two urgent tasks:

    a. Influence, if possible, the terminology and get rid of words such as “contaminate” or “infect”.

    b. Create a body of literature, particularly for laypeople, that can be used against the anti-technology rhetoric and tactics. As matters currently stand it would appear that the organic movement will have a free ride in claiming injury on the basis of its own rules, specifically tailored for the purpose, rather than facts. If unchecked, the organic movement will for instance be able to have a whole haystack analysed and claim injury as soon as a trace of GM DNA is found.

  • I am no lawyer, I don’t think it has given either side any more ground than the other on the issue of standing.

  • [...] Supreme Court Decides On Monsanto Alfalfa Case [...]

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