United States: Center for Food Safety v. Vilsack: Court Follows Geertson Seed Farms in Declining to Issue Injunction

Last Updated: August 19 2010
Article by John P. Mandler, Jess R. Phelps and Rhyddid Watkins

In the first post-Geertson decision dealing with the environmental impact of genetically modified crops and the remedies available to impacted plaintiffs, a federal district judge in the Northern District of California recently vacated the Animal and Plant Health Inspection Service's (APHIS) decision to deregulate (or approve for planting) genetically modified sugar beet seeds. See Center for Food Safety et al. v. Vilsack, Court No. 08-CV-00484 (N.D. Cal).

The vacatur order once again makes the GM sugar beet seeds a "regulated" article under the Plant Protection Act which precludes their planting until APHIS complies with the National Environmental Policy Act (NEPA) and prepares a valid environmental impact statement (EIS), or issues permits or other partial deregulation that would allow planting.

The decision reflects an increasing judicial willingness to limit and restrict the planting of GM seeds until the environmental impact has been fully assessed, which can place significant regulatory hurdles on the GM seed pipeline. The court, however, ruled that the Supreme Court's recent decision in Geertson Seed Farms precluded the issuance of an injunction that would place further restrictions on APHIS's ability to regulate the planting of GM seed prior to the completion of the EIS.

No Preliminary Injunction, But Defendants Advised to Use Conventional Seed

In September 2009, the court ruled that APHIS's approval for planting of the GM sugar beets violated NEPA because APHIS failed to perform the requisite environmental impact analysis, but declined to provide a remedy to the impacted plaintiffs. Consequently, the plaintiffs sought a preliminary and permanent injunction against the future planting of the GM sugar beet seeds.

In March of 2010, the court ruled on the plaintiffs' motion for a preliminary injunction and held that despite their success on the merits and their demonstration that they would likely be irreparably harmed from seed contamination if an injunction was not issued, a preliminary injunction was not warranted in light of the plaintiffs' five-year delay in seeking an injunction and the industry's overwhelming conversion to GM sugar beet seeds. The court, however, warned defendants that its decision on the preliminary injunction was not to be viewed as indicative of its determination on the request for a permanent injunction as they should "take all efforts, going forward, to use conventional seed."

District Court Vacates APHIS Deregulation Order

As the plaintiffs had prevailed on the merits and the court had declined to issue a preliminary injunction, the remaining issues for resolution were: (1) whether APHIS's approval of the GM sugar beets for planting should be vacated, or only remanded back to APHIS (i.e. whether planting of the GM sugar beets would be allowed during the environmental review period); and (2) whether to issue a permanent injunction against the planting of the GM sugar beets.

Between the March denial of plaintiffs' motion for a preliminary injunction and the August 2010 hearing on remedies, the Supreme Court announced its opinion in Monsanto Co. v. Geertson Seed Farms. In Geertson Seed Farms, the Supreme Court faced a similar dispute in which district court had vacated APHIS's approval for planting a GM alfafa seed and also permanently enjoined its future planting. In reviewing the relief provided, the Supreme Court held that a permanent injunction was unnecessary because the re-regulation of the seed sufficiently protected the plaintiffs from genetic drift and it inappropriately preempted APHIS's authority to consider interim measures.

In light of the Geertson Seed Farms ruling, the district court vacated APHIS's deregulation order and remanded the case back to APHIS for further consideration.

The court held that although it potentially had the discretion to leave the invalid deregulation order in effect while APHIS conducted an EIS, the court declined to exercise its discretion because it found that the current case did not meet the high standards required for remand without vacatur (a standard principally met only in those cases involving "serious irreparable environmental injury."). In so ruling, the court declined to recognize Monsanto's claim that the vacatur would cause it significant economic harm as a factor. The court did, however, limit the vacatur to the planting of GM sugar beet seeds planted after the date of the order to avoid the destruction of GM sugar beet crops already planted.

The federal district court also refused to grant APHIS a nine-month stay of the vacatur because it found that APHIS had already had sufficient time to implement any necessary interim measures. The court also expressed concern that APHIS's position that the deficiencies associated with its review were minimal, and that it would only be a matter of time before the order was reinstated, indicated that APHIS was not taking the process seriously enough.

Next Fight: Partial Approval of GM Seed Planting During Review

On the issue of the permanent injunction, however, the district court held that a permanent injunction preventing the planting of the genetically modified seeds was unnecessary and inappropriate. Specifically, the court held that Geertson prevented the issuance of an injunction when a "less drastic remedy" was sufficiently able to redress the plaintiffs' injury. In so ruling, the court rejected the plaintiffs' argument that APHIS would be unable to sufficiently prevent growers from violating deregulation order as too speculative to warrant an injunction—particularly after Geertson.

In sum, this decision reflects the increasing willingness of courts to require APHIS to prepare a formal EIS in advance of deregulating GM seeds—which could potentially slow down the approval process during the pendency of this review. As it stands to date, however, APHIS is not barred from partially approving for planting the GM sugar beet seeds pending final agency approval. As in Geertson, the next likely battle in the GM seed context will center on whether a partial approval for planting can adequately protect conventional farmers from exposure while the environmental reviews are conducted—a decision which will ultimately have a significant impact on the agricultural biotechnology sector.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
John P. Mandler
 
In association with
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
Accounting and Audit
Anti-trust/Competition Law
Consumer Protection
Corporate/Commercial Law
Criminal Law
Employment and HR
Energy and Natural Resources
Environment
Family and Matrimonial
Finance and Banking
Food, Drugs, Healthcare, Life Sciences
Government, Public Sector
Immigration
Insolvency/Bankruptcy, Re-structuring
Insurance
Intellectual Property
International Law
Litigation, Mediation & Arbitration
Media, Telecoms, IT, Entertainment
Privacy
Real Estate and Construction
Strategy
Tax
Transport
Wealth Management
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.