Court OKs Roundup
Ready injunction
Lack of impact statement key to appeals court’s decision
Mateusz Perkowski
Capital Press -
9/5/2008
A federal appeals court has upheld an injunction that halted
the sale or planting of glyphosate-resistant "Roundup
Ready" alfalfa seeds until the USDA completes a thorough environmental
study of the crop.
The 9th Circuit Court of Appeals ruled Sept. 2 that federal
district court judge Charles Breyer did not commit a
legal error in February 2007 by declining to hear additional scientific
evidence before placing an injunction on the genetically modified crop.
Breyer ruled that the USDA's
Animal and Plant Health Inspection Service violated the National Environmental
Policy Act by deregulating Roundup Ready alfalfa without completing an
environmental impact statement.
Opponents of Roundup Ready alfalfa fear that pollen from the
crop would contaminate organic and conventional alfalfa.
The Monsanto Co., which created Roundup Ready alfalfa, and
Forage Genetics, which developed the actual seed, appealed Breyer's
decision in June, arguing that the district court should have held an
"evidentiary hearing" that further examined the crop's potential
environmental effects.
The companies also said the injunction was excessive and did
not take into account suggested mitigation measures, like buffer zones from
other crops, that were proposed by APHIS.
The appeals court disagreed with both arguments.
The court ruled that the injunction was appropriate, given
what Breyer knew about Roundup Ready alfalfa's
potential to contaminate other crops.
The court also agreed with Breyer
that an evidentiary hearing was unnecessary, since an environmental impact
statement by the USDA APHIS would resolve scientific questions about the crop.
The court's decision to uphold the injunction was not
unanimous, however. Judge Randy Smith disagreed with the other two 9th Circuit
judges who formed the majority in the decision.
In his dissenting opinion, Smith said Breyer
should not have disregarded APHIS' recommended mitigation measures.
Smith also said that, had an evidentiary hearing taken
place, it could have altered the nature of Breyer's
injunction.
"These shortcomings resulted in a critical failure by
the district court and deprived the parties of important procedural rights when
it came to shaping the scope of any potential injunction," Smith said in
his opinion.
Dave Sacks, spokesman for APHIS, said the agency is continuing
to work on the environmental impact statement for Roundup Ready alfalfa.
The agency is reviewing the appeals court ruling, but has no
official comment on how the decision might affect the environmental impact
statement process, he said.
Roundup Ready alfalfa was initially approved by APHIS in
2005, after the agency decided to forgo an environmental impact statement
because an assessment found the crop would not have a significant environmental
impact.
That action triggered a lawsuit by the Center for Food
Safety, two seed companies, and a number of activist groups, which resulted in Breyer's injunction against planting or selling the crop.
Kevin Golden, staff attorney for the Center for Food Safety,
said the appeals court's decision was "historic" and set an important
precedent: It is now legally established that new genetically modified crops
will need to undergo a full environmental impact statement, he said.
"It's a great victory and shows the USDA needs to do
its job," said Golden, noting that the ruling marks the first time a
federal appeals court has upheld an injunction that blocks the
commercialization of a genetically modified crop.
The Monsanto Co. is disappointed by the ruling and is
reviewing all of its legal options, including an appeal to the U.S. Supreme
Court, said Garrett Kasper, spokesman for the firm.
The fact that Judge Randy Smith agreed with Monsanto that an
evidentiary hearing was necessary may also open the door for further hearings
before the 9th Circuit Court, said Kasper.
"We're encouraged by the dissenting judge's
remarks," he said.
Monsanto disagrees with the Center for Food Safety that the
ruling establishes a precedent requiring environmental impact statements for
new genetically modified crops, said spokesman Brad Mitchell.
"How you move forward with these things depends on a
number of factors," he said. "This (ruling) is very specific to the
Roundup Ready alfalfa case."
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