On June 21, 2010, the Supreme Court announced its anticipated decision in Monsanto Co. v. Geertson Seed Farms (No. 09-475), its first case concerning genetically modified crops. In a 7-1 opinion, the Court ruled that the district court abused its discretion in permanently enjoining farmers from planting Roundup Ready Alfalfa (RRA) seeds anywhere in the United States until the Animal and Plant Health Inspection Service (APHIS) complied with the National Environmental Policy Act (NEPA) and conducted an environmental impact statement (EIS).

The Plant Protection Act permits the Department of Agriculture to issue regulations to prevent the introduction and dissemination of "plant pests" in the United States. Unless the Department determines otherwise, all genetically engineered plants are presumed to be "plant pests." In determining whether a genetically engineered plant is not a "plant pest" the Department must comply with the National Environmental Policy Act, which requires a federal agency to prepare a detailed EIS before taking any major action "significantly affecting the quality of the human environment." An EIS is not required if the agency determines, based on a shorter environmental assessment, that the proposed action will not have a significant environmental impact.

This case began in 2004 when, after eight years of field testing, Monsanto and Forage Genetics International requested APHIS deregulate RRA to allow its unrestricted planting. In considering the application, APHIS did not complete an EIS, but instead drafted an environmental assessment (EA) of RRA's likely environmental impact. APHIS then published a notice in the Federal Register informing the public of Monsanto's request for deregulation and soliciting comments on the draft EA. After evaluating hundreds of responsive public comments, APHIS determined RRA would not have a "significant impact" on the environment and agreed to deregulate it without preparing an EIS.

In response, several conventional alfalfa seed growers and environmental groups filed suit in the United States District Court for the Northern District of California challenging APHIS's decision. The plaintiffs argued that the unregulated use of RRA would contaminate their conventional and organic alfalfa crops. They did not, however, seek a preliminary injunction during the pendency of the case, and consequently, RRA went unregulated for approximately two years; allowing more than 3,000 farmers in 48 States to plant an estimated 220,000 acres of RRA.

The district court ultimately agreed that the introduction of RRA could potentially contaminate organic and conventional alfalfa crops with a genetically engineered gene. In the district court's view, this potential contamination could lead to a significant environmental impact, therefore NEPA required an EIS before RRA could be deregulated. Accordingly, the district court vacated APHIS's decision to deregulate RRA and entered an injunction prohibiting the future sale and planting of RRA pending the completion of the EIS. The Ninth Circuit Court of Appeals affirmed the decision in all respects. The Supreme Court looked at the potential for gene transmission and the steps conventional and organic growers must undertake to prevent it from occurring in the context of whether the growers had standing to seek injunctive relief.

The Supreme Court reversed the district court's injunction. As an initial matter, the Court held that all the parties had standing: Monsanto because the injunction prohibited its selling or licensing RRA, and the plaintiffs because the district court found a reasonable possibility that RRA would infect their conventional and organic alfalfa crops. Because none of the parties disputed the district court's finding that APHIS violated the regulations by deregulating RRA without conducting an EIS, the Court assumed without deciding that the order vacating APHIS's deregulation was appropriate. As a result, the Court considered only whether the injunction was appropriate in light of RRA being once again regulated by APHIS.

In considering the injunction, the Supreme Court held that the district court erred in finding that the plaintiffs were able to satisfy the four-factor test for an injunction. To obtain an injunction, whether in an environmental case or otherwise, a plaintiff must show (1) he will be "irreparably harmed" without the injunction; (2) other legal remedies are inadequate; (3) a balance of the hardships favor the injunction; and (4) an injunction would not harm the public interest. The Supreme Court found none of these factors were satisfied.

In particular, the Court found that the plaintiffs would not suffer irreparable harm if an injunction is not granted because RRA is no longer deregulated, and planting and farming RRA is therefore already prohibited. Moreover, if APHIS issues a partial deregulation while conducting an EIS, the plaintiffs could file a new lawsuit contesting the partial deregulation. Indeed, whether a partial deregulation will cause any injury at all will depend on the particular scope and terms of the deregulation. The Supreme Court found that the injunction issued by the district court was unnecessary and overly broad because it preempted APHIS's right to decide, in the first instance, whether a limited deregulation would pose an appreciable risk of environmental harm. The Court, therefore, ruled in essence that an injunction was premature and could not be issued before APHIS had a chance to issue a new deregulation order.

Join Faegre & Benson's attorneys for a more in depth discussion of Monsanto v. Geertson Seed Farms at their FAB conference in July 2010.

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