Although the headlines would have you believe that the star of the show are the genetically-modified alfalfa seeds, the real issue that the U.S. Supreme Court will address in Monsanto Co. v. Geertson Seed Farms, Case No. 09-475 is whether NEPA violations can cause irreparable harm. What started out in the U.S. District Court as run-of-the-mill NEPA case, has evolved into a matter that seemingly involves the hot-button topic of genetically modified crops.
Despite the hype, the justices stayed fairly close to the script at Tuesday’s oral argument, generally declining to go into the merits of genetically-modified crops, though Justice Scalia wandered off the reservation, questioning the idea that genetically modified crops could contaminate other crops, adding that “this isn’t the contamination of the New York City water supply. This isn’t the end of the world.”
At least two of the justices seemed to wonder why the case was before the Supreme Court at all. Barely a minute into the argument, Justice Alito demanded to know whether the case would become moot once the USDA finalizes its environmental impact statement.
If we agree with your argument that the Ninth Circuit applied the wrong preliminary injunction standard and remand for them to apply the right preliminary injunction standard, the case may be moot by the time they do that.
The USDA released a draft in December, 2009, and expects to have a final EIS in a year. Gregory Garre, arguing for Monsanto, tried to dodge that bullet by claiming that Monsanto has, indeed, appealed the vacatur as well as the injunction and that “this case presents important legal issues concerning the entry of injunctive relief.’
Justice Ginsburg asked whether Monsanto and users of GM alfalfa seeds had grounds to challenge the injunction, regardless of whether it was justified. The injunction, which allowed farmers to plant seeds that had already been sold, did not impose any restrictions on planting beyond the ones Garre to respond to organic farmers argument that one way or the other farmers would not have been allowed to plant the genetically modified alfalfa until the environmental review was done.
Chief Justice Roberts was blunt about what he thought the disposition of the case should be, suggesting that when the District Court Judge Charles Breyer (Justice Stephen Breyer’s brother) vacated the decision to deregulate the alfalfa seeds, he should have remanded the case to the U.S. Department of Agriculture for further review instead of issuing the injunction.
Why did it do that? I mean, the way the APA [Administrative Procedures Act] works, this is sent back to the agency. If the agency wants to partially deregulate, it can do it and then you can challenge it under the normal APA procedures.
In the briefs, the question of irreparable harm in NEPA was raised. Monsanto argues that the Ninth Circuit erred in establishing a presumption of irreparable harm whenever NEPA’s procedural mandates are violated. Despite the fact that the Ninth Circuit specifically denied it was establishing a presumption of irreparable harm, Monsanto Monsanto contended that the Ninth Circuit’s approach was effectively the same. Geertson Farms, on the other hand, claimed that it had met the “likelihood of irreparable harm portion of the test for injunctive relief irrespective of whether there was a presumption.
Although Justice Stephen Breyer recused himself because his brother was the District Court Judge in the case, Justice Clarence Thomas, who represented Monsanto Co. as a private attorney prior to joining the bench, refused to recuse himself. A decision is expected some time in late June.