Plaintiffs Likely to Succeed on Merits of Challenge to APHIS GM Sugar Beet Permits
A federal court in California has determined that an agency decision to allow planting of genetically modified (GM) sugar beet stecklings (seedlings) without conducting an environmental assessment likely violated federal law and has ordered the parties to file briefs as to the appropriate remedy now that most of the stecklings authorized have been planted. Ctr. for Food Safety v. Vilsack, No. 10-04038 (N.D. Cal., decided September 28, 2010). Additional information about the lawsuit’s challenge to action taken by the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) appear in Issue 363 of this Update.
The court first addressed whether seed companies could intervene in the matter and ruled that they could do so as to the remedies, but not as to the merits, that is, whether APHIS violated federal environmental laws including the National Environmental Policy Act (NEPA) by issuing the permits without conducting an environmental review. The companies were allowed to participate as amici in the merits proceeding. The court also addressed whether the plaintiffs had standing to seek a temporary restraining order against APHIS and determined they did, finding that they had demonstrated “that a government agency violated certain procedural rules and that these rules protect a plaintiff’s concrete interests.”
APHIS issued the permits less than three weeks after the same court in a different case ruled that the agency was required to conduct an environmental impact assessment (EIS) before deregulating GM sugar beets, which assessment could take several years. The agency justified its decision by claiming that the permits related to an act (planting) independent from the remainder of the sugar beet planting cycle and therefore did not require an EIS. The court rejected the “independent utility” argument, finding that the permits were issued for the sole purpose of allowing the production of seedlings “for transplant into basic seed (commercial) production trials in the winter of 2010-2011.” While the seed companies argued that they had sought the permits for research and development, the court found no support in the record “that the permits had any utility other than enabling the seed companies to take the first step in a multi-step process related to the commercial production of genetically engineered sugar beets.”
According to the court, “Plaintiffs have sufficiently demonstrated a likelihood of success on the merits, i.e., that APHIS violated NEPA by considering the permits in isolation and segmenting them from the later cycles of genetically engineered sugar beet plantings and production.” The court also rejected the agency’s claim that its decision was warranted under a “categorical exclusion,” finding it likely that reliance on the exclusion was unlawful and made “to avoid conducting any environmental review.”
When the plaintiffs filed their petition for a temporary restraining order and preliminary injunction, they sought to enjoin any further permits and any plantings under the permits that had not already occurred. In later briefing, they sought an order requiring removal of the stecklings already planted. Because the court determined that APHIS “does not intend to issue any more permits of this nature” and “it appears as though the seed companies have already planted most, if not all, of the stecklings authorized by the permits at issue,” the court asked the parties to file supplemental briefs addressing remedies and will hear the matter on October 22, 2010. The court concluded by
requiring APHIS, under penalty of perjury, to provide information about “exactly when and where it made the information public that the permits had been granted” and “shall describe exactly what information was publicly disclosed.”
