By Kristen Friend, staff U.S. Supreme Court writer – April 29, 2010
The Court’s decision in the caseMonsanto Co. v. Geertson Seed Farmscould have an impact on the threshold for challenges under the National Environmental Policy Act (NEPA).
The Supreme Court heard arguments on Tuesday in a case involving genetically modified crops that set the stage for the Court’s first ever ruling on the subject. The case centers around a judge’s injunction preventing the use of a type of herbicidal resistant alfalfa, known as Roundup Ready, produced by the agriculture and biotech company, Monsanto (NYSE: MON). Monsanto produces both the herbicide Roundup and the breed of resistant alfalfa in question.
In the case, the Court is considering the environmental impact of genetically modified crops, not their safety. The decision is not predicted to be a sweeping or broad ranging statement on the ability of government to regulate genetically modified foods or on the merits of doing so. But, it could affect the viability of future challenges under the NEPA because it is expected the Court will dictate a new standard for those bringing claims.
According to the 2000 Plant Protection Act, the USDA’s Animal and Plant Health Inspection Service (APHIS) is charged with promoting regulations that prevent the “introduction of plant pests into the United States or the dissemination of plant pests within the United States.”  This includes the regulation of genetically modified organisms and plants, and APHIS has issued some regulations governing such organisms. Monsanto petitioned APHIS in 2004, claiming that their pest resistant alfalfa was not subject to regulations under the Plant Protection Act.
As was required, APHIS prepared an Environmental Assessment (EA), and approved Roundup Ready alfalfa for use in 2005. Some farmers began planting the crop. In 2006, a group of organic farmers, conventional farmers and environmental groups, led by Phillip Geertson of Geertson Seed Farms, sued, claiming that the initial government review was insufficient. AHPIS, they claim, should have produced an Environmental Impact Statement (EIS) in response to Monsanto’s petition. Geertson also argued that the agency’s Environmental Assessment was lacking and that the use of herbicide resistant alfalfa could result in the cross-contamination of non-genetically modified crops, hindering the farmers’ ability to sell their products domestically and abroad.  
A judge agreed with the plaintiffs and ordered an injunction preventing the nationwide use of Roundup Ready alfalfa. Monsanto appealed to the 9th Circuit Court of Appeals, where the injunction was upheld.
U.S. District Judge Charles Breyer wrote in his 2007 decision upholding the injunction that, while the Court accepted the government’s assertion that the crop has no adverse health effects on humans or livestock, health issues are only one of the potential causes of harm that must be addressed. Judge Breyer wrote, “A federal action that eliminates a farmer’s choice to grow non-genetically engineered crops, or a consumer’s choice to eat non-genetically engineered food, is an undesirable consequence: another NEPA goal is to maintain, wherever possible, an environment which supports diversity and variety of individual choice.” 
In its brief to the Court, Monsanto argued that the injunction preventing the use of their alfalfa seed was overbroad, and that the standard the lower courts used in determining harm was too low. According to Monsanto, the possibility that their breed of alfalfa could infiltrate organic and conventional crops belongs in the realm of “science fiction.”  They also contend that the use of a lower standard of harm “virtually requires a federal court to grant an injunction against proposed federal action” in any cases brought under the NEPA. 
Instead, Monsanto wants the Supreme Court to determine that plaintiffs in cases brought under the NEPA must show a “likelihood of irreparable harm” in order to win an injunction.
Supporters of Geertson believe that the ability of states to protect natural resources and the ability of citizens to obtain complete information regarding the impact of federal actions will be dangerously hindered if Monsanto prevails in its suit.
Environmental groups also claim that the ability of citizens to challenge the actions of the government on environmental grounds is critical to a functioning democracy. Union of Concerned Scientists member Doug Gurian-Sherman said of the case, “If the court moves towards choking off some of those checks and balances in the form of the public’s ability to challenge an agency, I think that would have some chilling effect on the operation of science in our democracy.” The Union of Concerned Scientists has filed a brief in support of Geertson. 
Members of the organic food industry, environmental groups, including Defenders of Wildlife and the National Resources Defense Council, as well as some State Attorneys General have also filed briefs in support of the defendants. Business groups, including the US Chamber of Commerce, The American Petroleum Institute and the National Association of Homebuilders as well as some biotech and agricultural groups have filed briefs on behalf of the plaintiffs. 
The USDA has been continuing its work on the required Environmental Impact Statement as the case has made its way through the lower courts and onto the Supreme Court docket. The ban on the use of Monsanto’s seeds would end once the agency completes its review, essentially rendering one aspect of the Court’s decision moot. However, the issue before the court that has environmental, agricultural and business groups paying attention is what standard of harm the Court will uphold for cases filed under the NEPA.
Lower courts have repeatedly ruled that plaintiffs are exempt from showing a “likelihood of irreparable harm” in such cases, and must simply show a “possibility of irreparable harm.” The “possibility” of harm standard was used by the 9th Circuit Court as part of the finding for upholding the injunction. 
If the Court finds for Monsanto, the burden on the government to provide thorough public Environmental Impact Statements will be reduced. If it finds for Geertson, it will affirm the position that the law requires full disclosure from the government in cases where potential environmental harm could result from the deregulation of a product.
The Supreme Court has decided one case involving the “likelihood of irreparable harm” standard,Winter v. NRDC in 2008. Monsanto’s arguments rely heavily on the Court’s decision in this case.
The issue under consideration in Winter was the legality of the use of sonar in Navy training activities. Environmental groups protested the use of sonar, arguing that it was known to cause harm to marine life. The Navy issued an Environmental Assessment but did not release an Environmental Impact Statement. The National Resources Defense Council sued in an attempt to halt the exercises, but a district court allowed the Navy to proceed with some added restrictions. The case made its way to the Supreme Court, with the Navy making a very similar argument: that the lower courts had relied only on the mere “possibility” of environmental harm when making rulings. 
In a decision, written by Chief Justice Roberts, the Court found in favor of the Navy, stating that harm must be “likely” and that an injunction is an “extraordinary remedy” requiring a “clear showing” of the success of a plaintiff’s argument. 
Given the decision in Winter, the Court’s history regarding environmental decisions handed down by the 9th Circuit Court, and the tone of the Justice’s questioning during oral arguments, it appears likely that the Circuit Court’s decision will be overturned. Of the five decisions favoring environmentalists the Supreme Court overturned last year, four of them came from the 9th Circuit.
During arguments, the Justices seemed critical of the respondent’s claims that the genetically modified crops would cause harm. They also appeared unconvinced of the lower court’s authority to enforce a complete ban, with Chief Justice Roberts questioning why the injunction was issued at all. When reflecting on the potential impact of the genetically modified crop, Justice Antonin Scalia said, “This isn’t the contamination of the New York City water supply. This isn’t the end of the world, it really isn’t.” 
Justice Breyer, who is considered to be a member of the “liberal” wing of the Court, is not involved in the case since his brother wrote the decision under consideration. Environmental advocacy groups urged Justice Thomas to recuse himself on the grounds that he worked as an attorney for Monsanto in the 1970s and wrote the decision in a 2001 case that provided the legal grounds for companies like Monsanto to be able to patent seeds.  These efforts were unsuccessful.
A decision is expected in late June or July.
- Decision, United States District Court For the Northern District of California
- http://www.google.com/hostednews/ap/article/ALeqM5isgbi9DSGVLOvoyTQ3f8M–Aw4sQD9FBGO1O0, The Associated Press