Oral argument in Monsanto Co. v. Geertson Seed Farms

Author:  Damien M. Schiff

On Tuesday, the Supreme Court will hear oral argument in Monsanto Co., a case concerning a San Francisco federal district court's nationwide injunction barring the use of Roundup Ready Alfalfa (RRA), a genetically modified form of alfalfa that is resistent to the Roundup herbicide.  The case was brought by a coalition of organic alfalfa farmers and environmental groups, challenging the federal government's decision to deregulate RRA.  Their basic fear was that RRA would cross-pollinate with their "pure" alfalfa.  The legal basis of the suit was that the feds should have produced an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA) before allowing for general use of RRA.

The district court agreed that RRA's deregulation should have been accompanied by an EIS.  The court then entered a nationwide injunction barring use of RRA until an EIS could be prepared.  The court issued the injunction (1) without finding that RRA use would cause the plaintiffs irreparable harm, and (2) without holding an evidentiary hearing to resolve disputes between the plaintiffs' and defendants' experts over the risk of harm posed by RRA.  Moreover, the court issued the injunction notwithstanding that (A) 99.5% of RRA is grown for hay and is harvested before it is biologically capable of cross-pollinating, and (B) the 0.5% of RRA that is grown for seed (and thus allowed to pollinate) can be cordoned off in such a way as to eliminate almost entirely any risk of cross-pollination.

PLF filed an amicus brief in support of Monsanto, arguing that (i) a party must establish irreparable harm to obtain an injunction, (ii) disputed issued of material fact must be resolved in an open hearing, and (iii) the traditional requirements for injunctive relief cannot be relaxed just because the case arises under NEPA.  The case promises to be an important follow up to Winter v. NRDC, a recent Supreme Court decision holding that environmental concerns do not trump national security issues when seeking injunctive relief under NEPA.