THE US Supreme Court will rule in late June or early July on whether or not to lift an injunction that bars the sale and planting of Roundup Ready (RR) alfalfa in the US.
The decision is particularly important because it will signify how quickly other genetically modified crops can be introduced in the US.
The high court's decision comes after hearing oral arguments on April 27 in the case of Monsanto Co. et al. vs. Geertson Seed Farms et al.
The legal issue on which the case focuses is whether the US Department of Agriculture's Animal & Plant Health Inspection Service (APHIS) violated the National Environmental Policy Act (NEPA) by allowing Monsanto's RR alfalfa to be sold and planted in June 2005 after performing an environmental assessment but before conducting a full environmental impact statement (EIS), as required by NEPA.
APHIS "deregulated" RR alfalfa after ruling in the environmental assessment that there was no likelihood of harm from the biotech crop, which tolerates being sprayed by the herbicide glyphosate.
However, Geertson Seed Farms and the Center for Food Safety sought and then won decisions in lower courts to bar the use of RR alfalfa, claiming the genetically modified crop would harm other organic and conventional varieties of alfalfa because of genetic contamination.
Monsanto petitioned the Supreme Court to overturn the Ninth Circuit Court of Appeals, which upheld the May 2007 injunction from a district court.
Legal scholars are watching the case because of its significance regarding NEPA enforcement. The possibility exists that a ruling in favor of Monsanto could simply require an EIS but lift the injunction. The complicated legal question involves how USDA and the lower courts determined RR alfalfa's potential to cause harm.
The Supreme Court will decide if lower courts acted properly in placing an injunction on the sale and planting of RR alfalfa without holding an "evidentiary hearing" to fully determine to likelihood that it would cause harm - as charged by Geertson et al. - and before APHIS concluded a full EIS.
US Deputy Solicitor General Malcolm Stewart, who defended the APHIS portion of the case before the Supreme Court, told the justices that the EIS might not be completed for another year.
Interestingly, only eight of the nine Supreme Court justices will rule on the case. Justice Stephen Breyer recused himself because his brother, judge Charles Breyer, heard the RR alfalfa case in the lower court. As a result, if the injunction is to be lifted, the court must rule at least 5-3 in favor of overturning ninth circuit rulings. A 4-4 tie will not make a difference on the current injunction.
Longtime observers of the Supreme Court warned against making any predictions based on oral arguments because the high court takes only the most complicated cases; questions raised during the oral arguments seldom reveal the entirety of each justice's thinking.
Justice Sonia Sotomayor pointed out that USDA essentially "short-circuited" the NEPA process and admitted to the court that it was seeking "forgiveness."
APHIS published its draft EIS on Dec. 18, 2009, recommending that RR alfalfa be deregulated. The comment period was extended to March, and USDA has received "on the order of 145,000 public comments," according to Stewart.
APHIS must review those comments and see "which of them need to be responded to, (and) the agency wants to consult with other federal agencies. So, this process is going to take longer than APHIS had anticipated at the outset," he explained.
In a decision that has far-reaching implications both for the enforcement of NEPA and for how rapidly biotech crops can be introduced for commercial planting, the question before the Supreme Court is what to do when a federal agency does not complete the EIS required by NEPA.
In a statement handed to reporters on the steps of the Supreme Court, Monsanto noted that RR alfalfa "successfully completed a food safety review by the Food & Drug Administration and was granted non-regulated status by USDA in 2005".
A separate EPA review "found the use of Roundup on the crop to be safe. Prior to the injunction, Roundup Ready alfalfa was planted by approximately 5500 growers across more than 220,000 acres," the statement added.
The American Farm Bureau Federation, Biotechnology Industry Organization, National Alfalfa & Forage Alliance, American Seed Trade Assn., National Cotton Council, National Potato Council, American Soybean Assn. and National Corn Growers Assn. filed a joint brief supporting Monsanto's petition. Several other organizations, including the U.S. Chamber of Commerce, did as well.
Those who supported Geertson Seed Farms include the Arkansas Rice Growers Assn., CROPP Cooperative, Montana Organic Assn., National Cooperative Grocers' Assn., National Organic Coalition, Organic Farming Research Foundation, Organic Seed Alliance and several other organic crop and food organizations and companies. The California attorney general also filed on behalf of Geertson, as did Defenders of Wildlife, The Humane Society of the United States and the Center of Biological Diversity.
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