Appealed from the United States Court of Appeals for the Ninth Circuit (June 24, 2009)
Oral argument: April 27, 2010
INJUNCTIVE RELIEF, NATIONAL ENVIRONMENTAL POLICY ACT, GENETICALLY ENGINEERED CROPS
In 2005, the Animal and Plant Health Inspection Service (“APHIS”) deregulated RRA, a genetically engineered alfalfa seed developed by Petitioner Monsanto. Respondent Geertson Seed Farm, a grower of conventional alfalfa, alleged that APHIS violated the National Environmental Policy Act (“NEPA”) by not conducting an environmental impact statement (“EIS”) before deregulating RRA. A district court found a NEPA violation and enjoined all future use of RRA until AHPIS completed its EIS. The Ninth Circuit affirmed. Monsanto challenges the Ninth Circuit’s ruling, arguing that the standard the district court employed to grant the injunction erroneously equated the NEPA violation with the likelihood of irreparable harm. Geertson maintains that the standard used was correct and that they demonstrated a likelihood of irreparable harm should RRA enter widespread use without further agency review. The Supreme Court’s decision will clarify the standard plaintiffs must meet in order to enjoin federal action that violates NEPA.
• [Question(s) presented]
• [Issue(s)]
• [Facts]
• [Discussion]
• [Analysis]
Questions presented
In this case, after finding a violation of the National Environmental Policy Act ("NEPA"), the district court imposed, and the Ninth Circuit affirmed, a permanent nationwide injunction against any further planting of a valuable genetically engineered crop, despite overwhelming evidence that less restrictive measures proposed by an expert federal agency would eliminate any non-trivial risk of harm.
The questions presented are:
1. Whether the Ninth Circuit erred in holding that NEPA plaintiffs are specially exempt from the requirement of showing a likelihood of irreparable harm to obtain an injunction.
2. Whether the Ninth Circuit erred 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.
3. Whether the Ninth Circuit erred when it affirmed a nationwide injunction entered prior to this Court's decision in Winter v. NRDC, 129 S. Ct. 365 (2008), which sought to remedy a NEPA violation based on only a remote possibility of reparable harm.
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Issues
Whether the district court applied the correct standard in permanently enjoining all future planting of RRA, pending an environmental impact statement from APHIS, and whether Monsanto was entitled to an evidentiary hearing before the final judgment was entered.
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Facts
Petitioner, Monsanto Company (“Monsanto”), is a large chemical manufacturing company that makes various herbicides and pesticides. Beginning in the 1990s, Monsanto began developing a genetically engineered form of alfalfa seed, known as Round Up Ready Alfalfa (“RRA”), that was resistant to glyphosate, the active ingredient in Monsanto’s bestselling herbicide, Round Up.
The Animal and Plant Health Inspection Service (“APHIS”), the division of the United States Department of Agriculture charged with regulating genetically engineered plant species, initially classified RRA as a “regulated article,” which put restrictions on its use. In April 2004, Monsanto petitioned APHIS to deregulate RRA, which would substantially remove the limitations on its use. In 2005, after receiving hundreds of comments from interested parties, APHIS deregulated RRA
In February 2006, Respondent, Geertson Seed Farm (“Geertson”), a conventional alfalfa grower, filed an action in the Northern District of California alleging that APHIS violated the National Environmental Policy Act (“NEPA”) by failing to conduct an environmental impact study (“EIS”) before deregulating RRA. NEPA requires that a federal agency prepare an EIS for any action that “significantly affect[s] the quality of the human environment.” The district court found that APHIS did violate NEPA by failing to conduct an EIS.
After finding a violation of NEPA, the district court then considered the appropriate remedy. At this point in the litigation, several third parties, including Monsanto, intervened. Monsanto and the other intervenors argued against broad injunctive relief, because RRA seed had already been sold pursuant to APHIS’s 2005 deregulation order, and many farmers had already or were intending to plant RRA crops. On March 12, 2007, the district court issued a preliminary injunction, prohibiting the planting of RRA after March 30, 2007. The growers who had already purchased RRA and were intending to plant it before March 30, 2007 were entitled to proceed. The district court scheduled a hearing on the scope of an eventual permanent injunction, and invited the parties to submit any additional evidence they wished the court to consider.
In May 2007, the district court permanently enjoined the further use of RRA. APHIS proposed that the court impose limitations on the further planting of RRA, but argued against enjoining all planting of RRA before an EIS could be prepared. The intervenors also requested an evidentiary hearing to assess the viability of APHIS’s proposed limitations. The district court rejected the request for an evidentiary hearing and permanently enjoined all future planting of RRA until APHIS conducted an EIS.
Monsanto appealed to the United States Court of Appeals to the Ninth Circuit. The Ninth Circuit reviewed the district court’s conclusions for abuse of discretion and affirmed both the permanent injunction and the denial of an evidentiary hearing. The Supreme Court granted certiorari on January 15, 2010.
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Discussion
Petitioner, Monsanto Company (“Monsanto”), argues that the district court erred in not requiring Respondent, Geertson Seed Farm (“Geertson”), to sufficiently show a likelihood of irreparable harm before permanently enjoining the further use of Round Up Ready Alfalfa (“RRA”). On the other hand, Geertson argues that it met the legal standard for issuing a permanent injunction by showing that the continued use of RRA presented a likelihood of irreparable harm, and that the injunction was properly granted pending an environmental impact statement (“EIS”) from the Animal and Plant Health Inspection Service (“APHIS”).
The Supreme Court’s decision in this case will determine the contours of the burden plaintiffs must meet in order to permanently enjoin an activity that violates the National Environmental Policy Act (“NEPA”).
Use of Genetically Modified Crops
The American Farm Bureau Federation (“AFBF”) faults the district court with not taking into account the public interests served by the use of genetically engineered crops such as RRA. AFBF argues that a farmer who uses RRA can produce better quality alfalfa and spend less money on expensive herbicides Furthermore, AFBF argues that the herbicide glyphosate is better for than the environment than other herbicides on the market.
Geertson counters by arguing that the probability of genetic contamination of conventional alfalfa by RRA plants is high and has occurred after the introduction of other genetically engineered species. Geertson contends that once contamination has occurred, it is very difficult to halt or reverse If irreversible contamination of conventional alfalfa occurs, Geertson argues, farmers who grow organic alfalfa will be unable to do so in the future and will lose their ability to participate in the organic food markets.
Injunctive Relief in NEPA Cases
In the view of the Chamber of Commerce (“Chamber”), the district court did not require Geertson to sufficiently show the likelihood of irreparable harm. The lower standard the district court applied, the Chamber argues, leaves too much room for judicial activism in enjoining conduct under NEPA. The Chamber notes that the government loses several NEPA cases each year and argues that the use of an easily-met permanent injunction standard in these cases would impede important government programs, such as initiatives within the government’s stimulus plan that must first go through NEPA review.
On the other hand, Geertson believes that the district court did apply the correct standard in granting a permanent injunction and argues that the imposition of a higher standard would make it difficult, if not impossible, for plaintiffs to obtain injunctive relief regarding activity that violates NEPA and that can irreparably harm the environment in the future.
The Chamber also argues that the district court should have adopted the narrower remedy proposed by APHIS. The Chamber holds that the district court should have deferred to the agency’s judgment because the agency has expertise in regulating genetically engineered crops and the district court does not. According to the Chamber, allowing judges to ignore agency solutions gives judges too much power to overrule federal programs with which they disagree politically.
Geertson contends that the district court did not have to consider the APHIS proposal, because its position was adopted during litigation and not necessarily based on their expertise. Geertson agrees that agency views are entitled to deference by the courts when they make decisions according to established regulatory procedures. However, Geertson argues, agency decisions that are not made within the constraints of regulatory procedure, but are adopted in litigation, are not entitled to deference. According to Geertson, for courts to defer in such situations would erode the judicial checks placed on agency action.
The Supreme Court’s decision in this case will clarify the burden that plaintiffs must meet in seeking to enjoin federal action that violates NEPA in the future.
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Analysis
Respondent Geertson Seed Farm (“Geertson”), a conventional alfalfa seed grower, filed an action in the Northern District of California alleging that the Animal and Plant Health Inspection Service (“APHIS”) violated the National Environmental Policy Act (“NEPA”) by failing to conduct an environmental impact study (“EIS”) before deregulating Round Up Ready Alfalfa (“RRA”), a genetically engineered form of alfalfa seed developed by Petitioner Monsanto Company (“Monsanto”). Geertson won; the district court found that APHIS violated NEPA by failing to conduct an EIS. The court entered an injunction prohibiting the sale or planting of RRA until APHIS completed an EIS. On appeal, the Ninth Circuit affirmed. This case concerns the standard used by the lower courts in issuing the injunction.
What is the Appropriate Standard for Granting Injunctive Relief in NEPA Violation Cases?
Monsanto argues that the lower courts failed to apply the appropriate standard for issuing an injunction and that the courts mistakenly applied a special rule for injunctive relief to NEPA violation cases. . In so arguing, Monsanto relies on a series of Supreme Court cases, including a 2008 case in which the Court held that “plaintiffs seeking [injunctive] relief [must] demonstrate that irreparably injury is likely in the absence of an injunction.” . Monsanto argues that the lower courts simply used a procedural violation of NEPA as a proxy for the finding that irreparable injury was likely to occur if they did not issue the injunction sought. Rather, Monsanto argues, the lower courts were required to make a separate, independent finding of likely irreparable harm in the absence of an injunction.
Geertson’s first and foremost argument is that Monsanto lacks standing to raise these issues on appeal. . It argues that because Monsanto is appealing the propriety of the injunction and not the finding of a NEPA violation itself, there is no actual injury that can be redressed by the Court. Geertson argues that because the NEPA violation itself caused RRA to return to its deregulated status and made the sale and planting of RRA illegal, any vacation or modification to the injunction would leave Monsanto in the exact same position it is in currently.
Notwithstanding its standing argument, however, Geertson addresses the merits of Monsanto’s appeal. Geertson argues that the lower courts employed the appropriate standard in issuing the injunction, and that they did not carve out a special exception to the traditional test for injunctive relief. Rather, Geertson argues, the lower courts applied the “traditional, four-part equitable test”, which requires a plaintiff to show that (1) he is likely to suffer irreparable harm, (2) remedies available at law, such as monetary damages, are inadequate to compensate for the injury, (3) the balance of the equities tips in plaintiff’s favor, and (4) an injunction is in the public interest. .
Monsanto concedes that the Ninth Circuit articulated the four-part equitable test for injunctive relief. . The problem, Monsanto argues, is that neither of the lower courts actually adjudicated whether irreparable harm was likely to occur, or whether such harm could be prevented through a more narrowly tailored injunction. Rather, Monsanto argues, the district court simply “based its injunction on the possibility of two harms it believed could flow from the use of RRA.” Monsanto then proceeds to argue that there is no likelihood that RRA will eliminate conventional alfalfa, relying on a string of scientific anecdotes. Monsanto argues that if the courts adopted the narrowly tailored injunction proposed by APHIS, rather than a blanket injunction, the stewardship measures outlined in the proposal would substantially reduce any risk of cross-pollination between RRA and regular alfalfa. Thus, Monsanto argues, that even if there were individual instances of cross-pollination, such remote occurrences could not constitute irreparable environmental harm for the purposes of injunctive relief.
Geertson responds by arguing that the district court did, in fact, make a finding of likely irreparable harm and that its decision to issue the injunctive was an appropriate exercise of discretion. . Pointing to the underlying record, Geertson argues that it sufficiently established instances of genetic contamination between RRA and regular alfalfa, enough to show that such occurrences were likely to continue absent an injunction. . Geertson also rejects Monsanto’s assertion that individual instances of contamination cannot constitute irreparable environmental harm, pointing to evidence in the record that suggests that both environmental and economic harm was likely to be irreparable.
Was the District Court Required to Enter the Narrowly Tailored Injunction?
In arguing that the lower courts abused their discretion, Monsanto points to the availability of less-intrusive measures that would have “eliminated any conceivable risk of harm.” Relying on a number of Supreme Court cases, Monsanto argues that district courts are required to narrowly tailor injunctions in order to make them no more burdensome to the defendant than necessary. APHIS had proposed a narrowly tailored injunction that would have established stewardship measures, including safe-distances between crops. Monsanto argues that in refusing to seriously consider the efficacy of APHIS’ proposed measure in preventing irreparable harm, the district court abused its discretion and issued a blanket injunction that was more burdensome to Monsanto than necessary. Relying on scientific evidence, Monsanto supports its argument that the injunction proposed by APHIS would have been effective in preventing irreparable harm.
Geertson responds by arguing that the district court was within its discretion in rejecting APHIS’ proposed injunction and instead issuing a blanket injunction. Geertson argues that APHIS was not entitled to judicial deference, which is normally given to agency decision-making. Rather, Geertson argues, an agency’s position adopted during the course of litigation proceedings is not entitled to any deference in district court. The difference, Geertson suggests, is that while the former is adopted publicly, through procedural mechanisms, and on the record, the latter is simply a post-hoc rationalization that is not a product of the record as a whole.
Should the District Court Have Held an Evidentiary Hearing?
Geertson argues that the district court was not required to hold an evidentiary hearing on the issue of irreparable harm. . Rather, Geertson argues that district courts are afforded broad discretion in conducting injunction hearings and that a trial-type of hearing is not required. When there is sufficient evidence on the record through court filings and submissions, Geertson argues, the district court is within its discretion to deny a request for an evidentiary hearing. . Geertson argues that Monsanto was afforded ample opportunity to present evidence, and that the district court had a sufficient record upon which to make a fair and equitable decision. Furthermore, Geertson argues that in this particular case, an evidentiary hearing would have been particularly unnecessary because the “findings in question [were] prospective or predictive in nature . . . [and] the district court's decision [was] likely to hinge on scientific data rather than determinations about the credibility of fact witnesses.”
Monsanto argues that the underlying record did not support a finding of irreparable harm, and thus the courts below erred in denying its request for an evidentiary hearing on the issue of irreparable harm. Monsanto argues that the history of the American legal system shows that the right to an evidentiary hearing “with live witnesses and the opportunity for cross-examination is deeply rooted.” Furthermore, Monsanto argues, such an evidentiary hearing is equally available in equity proceedings. Monsanto rejects the Ninth Circuit’s rationale that there were no issues of material fact and also rejects the notion that the temporary nature of injunctions supports a denial of a request for an evidentiary hearing. Rather, Monsanto argues that it should have been given the opportunity to present evidence in a live hearing that supports its position on the issue of the likelihood of irreparable harm.
Conclusion
This case will give the Supreme Court an opportunity to clarify the precise standard required before a district court may issue injunctive relief to remedy a procedural violation of NEPA. If the Court finds in favor of Geertson, a NEPA violation may be sufficient to raise the presumption of likely irreparable harm. However, if the Court finds in favor of Monsanto, the issue of likely irreparable harm will be adjudicated independently. Additionally, the Court will determine whether or not an evidentiary hearing is required before a district court can issue injunctive relief.
Authors
Prepared by: Kevin Jackson and Eric Johnson
Edited by: Lucienne Pierre
Additional Sources
• Farm and Dairy, “Ag groups urge high Court to reverse ban on biotech alfalfa cultivation,” (March 16, 2010).
• Food Safety News, Eric Burkett, “No Ruling Yet in GM Sugar Beet Case,” (March 8, 2010).
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