A federal court in California has decided to stop all new planting of genetically modified (GM) sugar beets in light of its September 2009 ruling that the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) violated environmental law when it deregulated the crop without conducting an appropriate environmental assessment. Ctr. for Food Safety v. Vilsack, No. 08-00484 (N.D. Cal., decided August 13, 2010). Additional information about the court’s prior ruling appears in Issue 320 of this Update. While the court granted the plaintiffs’ request to vacate APHIS’s deregulation decision, it denied their motion for a permanent injunction.

The court determined that vacatur was justified because APHIS’s errors were serious. “Moreover,” the court observed, “APHIS’s apparent position that it is merely a matter of time before they reinstate the same deregulation decision, or a modified version of this decision, and thus apparent perception that conducting the requisite comprehensive [environmental] review is a mere formality, causes some concern that Defendants are not taking this process seriously.” The court also noted that APHIS had 10 months to take interim action since the court issued its ruling on the agency’s violation of federal environmental laws, “but failed to act expediently.”

Rejecting the economic consequences argument advanced by the government and the intervening defendants, the court stated, “it is not clear that economic consequences is a factor the Court may consider in environmental cases.” The court also pointed out that its decision about the inadmissibility of a declaration by a defense expert left the defendants without evidence “that serious economic harm would be incurred pending a full environmental review or any interim action by APHIS.”

A permanent injunction was not called for, according to the court, because, contrary to plaintiffs’ contention, the possibility that the defendant-intervenors would violate the vacatur and that APHIS would be unable to enforce the “reinstated regulated status of genetically engineered sugar beets,” was speculative. The denial was without prejudice, however, “if, after the deregulation decision is vacated, Plaintiffs can demonstrate that Defendant-Intervenors or other third parties have in fact violated the vacatur.”

The remedy is limited to “any planting of genetically modified sugar beets after the date of this Order.” The court would not allow destruction of GM crops that have already been planted and, in fact, will allow harvesting, processing and sale of all GM sugar beet root crops already planted. Given that the herbicide-resistant trait in sugar beets is present in 95 percent of the plants grown in the United States, this ruling could have a major impact on the industry. In fashioning its remedy, the court was careful to take into consideration Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743 (2010), thus allowing defendants to take interim measures, i.e., prepare an environmental impact statement (EIS) to meet their obligations under the law.

According to a news source, APHIS has apparently estimated that it could take until April 2012 to prepare an EIS on GM sugar beets. Industry officials have reportedly suggested that the agency has the authority to implement other measures to permit some planting of GM sugar beets, and a government spokesperson was quoted as saying the agency was “reviewing the judge’s order in order to determine appropriate next steps.” The organizations that brought the lawsuit called the ruling “a major victory for farmers, consumers and the rule of law. USDA has once again acted illegally and its approval of a biotech crop rescinded. Hopefully the agency will learn that their mandate is to protect farmers, consumers and the environment.” See The New York Times, August 13, 2010; The Wall Street Journal and Earthjustice News Release, August 16, 2010.

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.