To see how Washington Legal Foundation’s arguments would fare (we filed an amicus brief in support of Monsanto), I attended yesterday’s Supreme Court oral argument in Monsanto Co. v. Geertson Seed Farms.  Unfortunately, the justices didn’t spend much time discussing many of the issues that the parties and amici briefed.  Instead, they devoted a majority of their questions to whether Monsanto lacks standing to challenge the injunction in the first place.  Here’s why:

The case centers on the propriety of an injunction that was issued to halt the sale and distribution of a strain of genetically modified alfalfa developed and marketed by Monsanto Co.  (Alfalfa yields increase considerably if weeds can be prevented from growing in the same field.)  The new variety of alfalfa, known as Roundup Ready alfalfa, is resistant to Monsanto’s widely used agricultural herbicide Roundup. The use of Roundup Ready alfalfa allows farmers to apply Roundup to their entire field of alfalfa crops, rather than more expensive and less environmentally friendly herbicides that must be applied more frequently.

Before a genetically modified plant seed may be sold commercially, federal law requires the manufacturer to obtain approval from the federal Animal and Plant Health Inspection Service (APHIS), a division of the USDA. The approval process is designed to ensure that the seed is safe, that the danger of cross-pollination with other seed varieties is minimal, and that the possibility of cross-pollination is not a significant harmful impact on the human environment.  After eight years of field testing, APHIS approved Roundup Ready alfalfa for marketing and distribution.  It simultaneously determined, after conducting an environmental assessment (EA) under NEPA, that approval of Roundup Ready alfalfa would not have a significant impact on the environment, thereby obviating the NEPA requirement to prepare a full-fledged EIS.

Several environmental groups then filed suit against APHIS, alleging that its EA was inadequate under NEPA.  The district court agreed that APHIS was required to prepare a more extensive EIS.  It further held that all marketing of Roundup Ready alfalfa should be enjoined until an EIS could be completed (a process that often takes several years).  Although the district court refused to conduct an evidentiary hearing on the question of remedies, it nevertheless held that the plaintiffs would be irreparably harmed in the absence of a blanket, nationwide injunction against future marketing, distribution, and planting of Roundup Ready alfalfa.  The U.S. Court of Appeals for the Ninth Circuit affirmed the grant of injunctive relief. Monsanto, which had intervened in support of APHIS, petitioned the Supreme Court to review the decision.  I should also note that WLF published a short paper on the case last week by WLF Fellow & Berkeley law student Corbin Barthold, available here.

WLF’s brief argued that Congress never intended that NEPA create substantive environmental policy.  Because NEPA is a purely procedural statute, it is particularly inappropriate for courts to issue unwarranted injunctions under NEPA without the benefit of an evidentiary hearing to resolve disputed issues of material fact on the likelihood of irreparable harm.  But that, in a nutshell, is what happened in this case.

In its response brief, Geertson contended for the first time in the case that Monstanto’s appeal did not squarely challenge the district court’s order vacating APHIS’s deregulation decision.  Arguably, because the deregulation of Roundup Ready alfalfa would be prohibited even in the absence of the injunction, any harm that Monsanto has suffered arises from the district court’s order vacating APHIS’s deregulation decision, not the injunction itself.  Although Justice Alito appeared sympathetic to this argument, Chief Justice Roberts wasn’t so sure.  Because the order vacating the agency’s deregulation order should simply send the matter back to APHIS (which is free to craft an interim protocol), the injunction was superfluous and should not have been issued.  Once remanded to APHIS, if the agency decides to partially deregulate the sale and marketing of Roundup Ready alfalfa pending a final EIS, Geertson would be left with an APA challenge of that decision.

Following oral argument, I joined Latham & Watkins’ Greg Garre (who argued the case for Monsanto) and two leading environmental attorneys in a lively panel discussion on Monsanto v. Geertson Seed, hosted by the Environmental Law Institute.