The U.S. Supreme Court has agreed to hear an appeal from a Ninth Circuit Court of Appeals decision enjoining the sale and planting of genetically modified (GM) alfalfa seed until the government completes an environmental impact statement (EIS) for the crop’s proposed delisting. Monsanto Co. v. Geertson Seed Farms, No. 09-475 (U.S., certiorari granted January 15, 2010) (Breyer, J., not participating). The parties’ briefs must be filed in February and March 2010.

The questions before the Court are (i) “Did the Ninth Circuit err in holding that NEPA [National Environmental Policy Act] plaintiffs are specially exempt from the requirement of showing a likelihood of irreparable harm to obtain an injunction?”; (ii) “Did the Ninth Circuit err in holding that a district court may enter an injunction sought to remedy a NEPA violation without conducting an evidentiary hearing sought by a party to resolve genuinely disputed facts directly relevant to the appropriate scope of the requested injunction?”; and (iii) “Did the Ninth Circuit err when it affirmed a nationwide injunction entered prior to this Court’s decision in Winter v. NRDC, 77 U.S.L.W. 4001 (U.S. 2008), which sought to remedy a NEPA violation based on only a remote possibility of reparable harm?”

According to a news source, the Obama administration opposed Monsanto’s petition because the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) could complete the EIS and moot the issues in the case by deregulating GM alfalfa before the Court can hear and decide the appeal. Still, the administration apparently disagreed with the Ninth Circuit’s ruling. More information about the case can be found in issues 274 and 309 of this Update. Details about the APHIS EIS, which is currently undergoing public review, can be found in issue 333 of this Update.

The executive director of the Center for Food Safety, which initiated the litigation on behalf of a coalition of non-profits and farmers, was quoted as saying in response to the U.S. Supreme Court’s decision to grant review, “Although we believe a further hearing is unnecessary, we are confident we will again prevail, as the lower courts have already three times determined. We hope that this grand stage will further
inform the public, policymakers and the media about the significant risks of genetically engineered crops and the vital need to protect farmers and the environment.” Idaho-based alfalfa farmer Phil Geertson reportedly said about the certiorari grant, “We trust the Supreme Court will uphold farmers’ right to choose their crop of choice and protect us from the constant fear of contamination from GE crops.” See
Center for Food Safety News Release, January 15, 2010;, January 16, 2010.

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