Faulty NEPA Analysis Results in Injunction Against Planting Genetically Modified Crops

A federal district court in California recently enjoined seed growers from planting genetically modified alfalfa, concluding that the U.S. Department of Agriculture (“USDA”) violated the National Environmental Protection Act (“NEPA”) by failing to adequately assess the environmental effects of “Roundup Ready” alfalfa before deregulating it. Geertson Seed Farms v. Johanns.[1] The opinion illustrates the ongoing struggle to harmonize the interests of agricultural biotechnology corporations competing in domestic and global markets with those of non-modified crop producers, consumer advocacy groups, and the environmental community.

Background

Alfalfa is primarily used for livestock feed and is the fourth most widely grown crop in the United States (behind corn, soybeans and wheat). The federal Plant Protection Act gives the USDA the authority to adopt regulations preventing the introduction and dissemination of plant pests.[2] USDA regulates genetically engineered plant pests through the Animal and Plant Health Inspection Service (“APHIS”).[3] Such products and organisms are known as “regulated articles” under the Plant Protection Act. APHIS originally considered alfalfa lines J101 and J163 – seed lines known as “Roundup Ready alfalfa” that were genetically engineered by the Monsanto Company and Forage Genetics International to tolerate the herbicide glyphosate (the active ingredient in Roundup) – to be regulated articles.[4]

Any person may petition APHIS for a determination that a regulated article does not present a plant pest risk, so should not be regulated.[5] In April 2004, the Monsanto Company and Forage Genetics petitioned APHIS for a determination of nonregulated status for Roundup Ready alfalfa. Geertson Seed Farms and other alfalfa growers, along with the Center for Food Safety, Center for Biological Diversity, Western Organization of Resource Councils, Sierra Club and other non-profit organizations, opposed the petition. They argued that: (1) the genetically modified alfalfa would contaminate conventional and organic alfalfa through gene transmission; (2) due to contamination, deregulation could prohibit farmers from marketing their natural products as organic and/or non-genetically engineered; (3) contamination would also impact organic livestock sellers; and (4) genetically modified alfalfa would negatively impact the export market, because 75 percent of American alfalfa is exported to Japan – a country that does not permit imports of glyphosate tolerant alfalfa. They also expressed concern that deregulation would result in increased use of Roundup and spur development of glyphosate tolerant weeds.[6]

Following the biotech companies’ petition, APHIS prepared an environmental assessment (“EA”) pursuant to NEPA and took public comments on the EA and petition for deregulation. The agency received 663 comments; 520 opposed deregulation.[7] “Nonetheless, in June 2005, APHIS issued a Finding of No Significant Impact (“FONSI”) and approved Monsanto’s deregulation petition in whole; that is, the agency concluded that Roundup Ready alfalfa should be deregulated and sold without direct regulation by the USDA.”[8] In its FONSI, APHIS acknowledged that, upon deregulation, Roundup Ready alfalfa could be planted near organic alfalfa crops without any buffer. Still, APHIS deemed the risk of gene transmission insignificant because organic operations would presumably develop and maintain a plan to avoid cross-pollination.[9] APHIS concluded that quality control could limit the amount of glyphosate resistant alfalfa included in exports to Japan, that organic farmers would still have the ability to purchase non-genetically modified alfalfa, and that alternative herbicides could minimize potential problems of glyphosate resistant weed development.[10] The agency also found that: (1) the genetically modified seeds exhibit no plant pathogenic properties; (2) they will not harm threatened or endangered species that are beneficial to agriculture; and (3) they should not reduce the ability to control pests and weeds in alfalfa or other crops.[11] On these bases, APHIS granted the companies’ petition filed under the Plant Protection Act and implementing regulations,[12] and deregulated Roundup Ready alfalfa.[13]

In February 2006, plaintiffs filed suit against the Secretary of the USDA and the Administrators of APHIS and the U.S. Environmental Protection Agency, challenging the decision to deregulate Roundup Ready alfalfa. The Court allowed Monsanto, Forage Genetics, and three individuals to intervene as defendants.

The February and March 2007 Orders

Plaintiffs brought claims under NEPA, the Endangered Species Act (“ESA”), and the Plant Protection Act. In his February 2007 order, U.S. District Judge Charles R. Breyer of the Northern District of California addressed only plaintiffs’ NEPA claims. The NEPA issue presented a question of first impression: “[W]hether the introduction of a genetically engineered crop that might significantly decrease the availability or even eliminate all non-genetically engineered varieties is a ‘significant environmental impact’ [under NEPA] requiring the preparation of an environmental impact statement [(“EIS”)], at least when it involves the fourth largest crop in the United States.” The Judge ruled that this introduction qualifies as a significant environmental impact under NEPA, so required preparation of an EIS. [14] He made the following findings in support of that conclusion:

1) A realistic potential for contamination of non-genetically engineered alfalfa exists.

APHIS stated in its FONSI that organic farmers would have to prevent contamination through crop protection systems, but the agency did not identify any method that a farmer could employ to, for example, prevent bees from pollinating crops with genetically modified alfalfa. APHIS’ failure to inquire into the extent of gene transmission was therefore arbitrary and capricious.
Without considering variables such as weather and timing of harvest, APHIS also decided that forage alfalfa was not at risk of contamination. This decision was also arbitrary and capricious.[15]

2) APHIS failed to address the effects of genetically engineered alfalfa on organic farmers’ business.

APHIS’ response to plaintiffs’ concerns that deregulation would undercut their organic marketing efforts was “wholly inadequate.”[16] The government “candidly explained” at oral argument that Roundup Ready alfalfa is the first genetically engineered crop that could be transmitted.[17] According to the Court, this “highlights that APHIS is operating in uncharted territory.” Still, “the Court caution[ed] that it is not ruling that Roundup Ready alfalfa is harmful to consumers or livestock. Rather, the significant impact that requires the preparation of an EIS is the possibility that the deregulation of Roundup Ready alfalfa will degrade the human environment by eliminating a farmer’s choice to grow non-genetically engineered alfalfa and a consumer’s choice to consume such food.”[18]

3) APHIS failed to adequately examine the potential for development of glyphosate resistant weeds.

In its Environmental Assessment and associated FONSI, APHIS stated that weeds often develop a resistance to herbicides, and that the agricultural community is addressing the issue. The agency wrote, “Alternative herbicides and strategies are available that may minimize the problem . . . [and] alfalfa growers and weed scientists understand that good stewardship maybe the only defense against this potential problem.”[19] On this basis, APHIS concluded that this potential development did not warrant preparation of an EIS. The Court found the agency’s reasoning unconvincing. In fact, Judge Breyer found that “[n]othing in NEPA, the relevant regulations, or the caselaw support such a cavalier response.”[20]

In conclusion, the Court found that the petition raised “substantial questions” as to whether (1) “deregulation of Roundup Ready alfalfa without any geographic restrictions will lead to the transmission of the engineered gene to organic and conventional alfalfa; (2) the possible extent of such transmission; (3) farmers’ ability to protect their crops from acquiring the genetically engineered gene; [and (4)] the extent to which Roundup Ready alfalfa will contribute to the development of Roundup-resistant weeds . . . and how farmers will address such weeds.”[21] APHIS must answer these questions in its EIS. The Court reserved consideration of plaintiffs’ claims brought under the ESA and Plant Protection Act, pending APHIS’ preparation of its EIS.

On March 12, 2007, Judge Breyer vacated the federal defendants’ June 2005 decision deregulating Roundup Ready alfalfa and enjoined all future planting of Roundup Ready alfalfa beginning March 30, 2007. To minimize harm to farmers, the Court allowed those growers who intended to plant Roundup Ready alfalfa in the next three weeks, and had already purchased the seed as of March 12, 2007,to plant. The Court ordered that all other growers intending to plant after March 30, 2007, or who had not yet purchased the seed, could plant only non-genetically engineered alfalfa.[22] Oral argument on plaintiffs’ request for permanent injunctive relief in Geertson Seed occurred on April 27, 2007.

Reactions and Conclusions

In response to the February 2007 order, Monsanto told the New York Times that it did not think the ruling would affect its business.[23] After the Court issued its March 2007 order, Monsanto stated that a continued ban on Roundup Ready alfalfa would force farmers “to plant lower-yield alfalfa breeds that pose more complicated and costly weed control problems, and require the use of more toxic or environmentally problematic herbicides.”[24] On March 23, 2007, APHIS published a notice in the Federal Register that the Agency returned alfalfa lines J101 and J163 to regulated status. While plaintiffs assert that deregulation “poses novel, frightening, and uncertain potential effects on public safety and health and the environment,”[25] Monsanto asserts that farmers have grown Roundup Ready crops “successfully alongside conventional and organic crops for more than a decade.”[26] Some farmers have embraced biotechnology like Roundup Ready alfalfa, in part because it cuts costs by enabling growers to use just one herbicide.[27]

At least two other courts have recently ordered the USDA to subject genetically engineered species to increased regulatory scrutiny. District court judges in Hawaii and the District of Columbia also found that the USDA failed to adequately assess the environmental impacts of genetically engineered crops, and Judge Henry Kennedy of the U.S. District Court for the District of Columbia enjoined field tests of genetically modified, glyphosate tolerant creeping bentgrass.[28]

In International Center for Technology Assessment v. Johanns, Judge Kennedy held that the USDA failed to adequately assess the potential environmental impacts of the genetically engineered grasses before approving field trials of the species.[29] He therefore permanently enjoined the federal defendants from processing any acknowledgment or permit for such trials.[30] The order did not limit its scope to glyphosate tolerant creeping bentgrass. The federal defendants therefore moved for reconsideration of the court’s permanent injunction order, arguing that the order’s broad language apparently encompasses any action approved by APHIS, irrespective of the subject, scope or location of the action.[31] That motion for reconsideration is still pending.

In Center for Food Safety v. Johanns, Judge J. Michael Seabright of the U.S. District Court for the District of Hawaii concluded that the USDA violated NEPA and the ESA by failing to adequately assess the impacts of open-air field tests of experimental, genetically engineered pharmaceutical-producing plant varieties (“GEPPV”) on the environment and endangered species.[32] The Court concluded that APHIS’ permitting of the GEPPV program violated NEPA and the ESA. However, the Court declined plaintiffs’ invitation to impose a nationwide ban on all such field testing, and denied plaintiffs’ motion for injunctive relief.[33] Cross-appeals are pending.

In all of the opinions above, courts found that the effects of certain genetically modified crops are largely unknown. Therefore, they required closer agency review to ensure compliance with federal environmental laws and protection of human health, wildlife, the environment, and the economic interests of farmers producing non-modified crops. These opinions could signal an increased willingness on the part of courts to compel that level of scrutiny by prohibiting laissez faire regulation of the development of biotechnology in the United States. More immediately, if Judge Breyer permanently enjoins domestic use of the widely-used Roundup Ready alfalfa seed, the opinion would significantly alter the dynamics of the western alfalfa growers’ market.

For more information on NEPA issues or regulation of genetically modified crops, contact Jessica Ferrell or Dustin Till.