978-1285770178 Case Printout Case CPC-25-04 Part 1

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Geertson Seed Farms v. Johanns

United States District Court,

GEERTSON SEED FARMS, et al., Plaintiffs,

No. C 06-01075 CRB.

Feb. 13, 2007.

Gregory D. Page, Robert Pendleton Williams, Kristen Byrnes Floom, U.S.

Department of Justice, Washington, DC, for Defendants.

MEMORANDUM AND ORDER

CHARLES R. BREYER, United States District Judge.

farmer and consumer associations challenge the Department of

the parties’ cross-motions for summary judgment. The motions raise a

close question of first impression: whether the introduction of a genetically

eliminate all non-genetically engineered varieties is a “significant

BACKGROUND

The federal Plant Protection Act gives the Secretary of the United States

(D.Haw.2006). Pursuant to this authority, the USDA, through the Animal

considered Roundup Ready alfalfa a regulated article; as such, it was

Not Reported in F.Supp.2d, 2007 WL 518624

William B. Rostov, San Francisco, CA, Joseph Mendelson, III, Washington,

Any person may submit a petition seeking a determination that a regulated

article does not present a plant pest risk and therefore should not be

regulated. 7 C.F.R. § 340.6. In May 2003, Monsanto, the manufacturer of

Roundup, submitted a petition requesting nonregulated status for Roundup

Ready alfalfa, designated as event J101 and J163. Administrative Record

denied the petition, commercial-scale production of Roundup Ready alfalfa

would continue to be precluded, although the plant could still be grown in

field trials, as it has since 1998. AR 5503. APHIS could also determine that

Roundup Ready alfalfa poses no significant risk in certain geographic

areas, but a significant risk in others, and therefore approve the petition in

for deregulation. Of the 663 comments received by the agency, 520

opposed deregulation. AR 5487.

One of the primary objections raised is that gene transmission may occur

between glyphosate tolerant alfalfa and conventional and organic alfalfa,

that is, that conventional and organic alfalfa will become “contaminated”

Farmers complained to APHIS that if Roundup Ready alfalfa is

deregulated they will no longer be able to market their products as

“organic,” or at least as non–genetically engineered, and that this

“contamination” will also impact those who sell organic livestock or

livestock that is not fed any genetically engineered foods. AR 5488, 5491,

cause the development of additional glyphosate-resistant weeds, as well

as a dramatic increase in the amount of Roundup used in the environment.

Nonetheless, in June 2005, APHIS issued a Finding of No Significant

Impact (“FONSI”) and approved Monsanto’s deregulation petition in whole;

that is, the agency concluded that Roundup Ready alfalfa should be

regulated status to a transgenic events, APHIS does not have any further

regulatory authority over this particular transgenic event”). APHIS

nevertheless concluded that the risk of gene transmission is not significant

because “organic production operations must develop and maintain an

organic production system plan that outlines the steps it will take to avoid

employing reasonable quality control, it is highly unlikely that the level of

glyphosate tolerant alfalfa will exceed 1% in conventional alfalfa hay” and

that since Japan allows one percent of exports of a crop to contain

genetically modified product, exports to Japan would not be affected. AR

5488.

glyphosate tolerant. AR 5511.

APHIS agreed with the objectors that the deregulation of Roundup Ready

alfalfa could lead to the development of additional glyphosate–resistant

weeds, but reasoned that this impact was not significant because weed

species have developed resistance to every widely used herbicide;

I. NEPA

NEPA “requires a federal agency such as [APHIS] to prepare a detailed

EIS for all ‘major Federal actions significantly affecting the quality of the

human environment.’ “ Blue Mountains Biodiversity Project v. Blackwood,

161 F.3d 1208, 1211-12 (9th Cir.1998) (quoting 42 U.S.C. § 4332(2)(C)).

project will ‘significantly affect’ the environment, thereby triggering the

requirement for an EIS.” Id. “Where an EIS is not categorically required,

the agency must prepare an Environmental Assessment to determine

whether the environmental impact is significant enough to warrant an EIS.”

Ocean Advocates v. U.S. Army Corps of Engineers, 402 F.3d 846, 863

Roundup Ready alfalfa. See Anderson v. Evans, 371 F.3d 475, 488 (9th

Cir.2004) (if an EA results in a “finding of no significant impact”-known as a

FONSI-the agency need not prepare an environmental impact statement).

Plaintiffs contend that APHIS is required to prepare an EIS.

A. Standard of Review

of its proposed action.” Id. “A hard look includes considering all

foreseeable direct and indirect impacts.’ “ Earth Island Inst. v. U.S. Forest

Serv., 442 F.3d 1147, 1159 (9th Cir.2006) (internal quotation marks and

citation omitted). “An agency’s decision not to prepare an EIS will be

considered unreasonable if the agency fails to supply a convincing

whether the agency took a ‘hard look’ at the potential environmental impact

of a project.” Blue Mountains Biodiversity Project, 161 F.3d at 1212

(internal quotation marks and citation omitted).

B. Analysis

“[A]n EIS must be prepared if ‘substantial questions are raised as to

questions whether a project may have a significant effect on the

environment.” Blue Mountains Biodiversity Project, 161 F.3d at 1212

(internal quotation marks and citation omitted). “Put another way, a

proposal can be considered controversial if substantial questions are

raised as to whether a project may cause significant degradation of some

action take place.” Id. (citing 40 C.F.R. § 1508.27(a)). “Intensity means ‘the

severity of the impact.’ “ Id. (citing 40 C.F.R. § 1508.27(b)).

Several factors must be considered in evaluating intensity, including the

“degree to which the effects on the quality of the human environment are

likely to be highly controversial;” “[t]he degree to which the possible effects

states. California is the largest producer of alfalfa seed, and California,

Idaho, Washington and Nevada together produce 85 percent of all

domestic alfalfa seed. In this context, plaintiffs identify what they believe

are several significant environmental impacts that will be caused by

Roundup Ready alfalfa, or that at least may be caused by the deregulation

Plaintiffs label such effect “biological contamination.” Biological

contamination can occur through pollination of non-genetically engineered

plants by genetically engineered plants or by the mixing of genetically

engineered seed with natural, or non-genetically engineered seed.

Alfalfa seeds are pollinated by bees and, as a result, there is a realistic

farmer to remove the gene from the crop or control its further spread. AR

4287. And alfalfa is a perennial crop; the crop is only replanted every three

to four years.

Plaintiffs complain that the “contamination” of organic and conventional

crops with the genetically engineered gene will have negative economic

at least fed with non–genetically engineered food. All of these farmers may

be required to test their crops and livestock for traces of the genetically-

engineered alfalfa. Even non-organic farmers who want to raise

genetically-engineered free plants and livestock will be impacted.

APHIS acknowledges that once Roundup Ready alfalfa is deregulated the

follows:

[T]he National Organic Program, which is administered by USDA’s

Agricultural Marketing Service, requires organic production operations to

have distinct, defined boundaries and buffer zones to prevent unintended

contact with prohibited substances, such as modified genes, from adjoining

AR 5488, 5510. It also reasoned that federal organic standards do not

require the testing of inputs or products for genetically engineered genes

and that the unintentional presence of the engineered genes will not

“necessarily” constitute a violation of national organic standards. AR 5511.

In the EA, APHIS concluded, without further elaboration, that non–

before the seed is set and allowed to mature. Id.

APHIS’s reasons for concluding that the potential for the transmission of

the genetically engineered gene is not significant are not “convincing” and

do not demonstrate the “hard look” that NEPA requires. See Blue

Mountains Biodiversity Project, 161 F.3d at 1211. APHIS did not conclude

on this conclusion even though it made no inquiry into whether those

farmers who do not want to grow genetically engineered alfalfa can, in fact,

protect their crops from contamination, especially given the high

geographic concentration of seed farms and the fact that alfalfa is

pollinated by bees that can travel more than two miles. Neither the EA nor

speculation on potential … effects. The purpose of an EIS is to obviate the

need for speculation by insuring that available data are gathered and

implemented prior to the proposed action.” National Parks Conservation

Ass’n v. Babbitt, 241 F.3d 722, 732 (9th Cir.2001) (internal quotation marks

and citation omitted). The further collection of data can inform APHIS as to

without making any inquiry into the extent of likely gene transmission from

genetically engineered seed crops to non-engineered seed crops is

arbitrary and capricious; it did not obtain the very information it needs to

determine if such an option is warranted. See Earth Island Institute, 442

F.3d at 1160 (“If an agency has failed to make a reasoned decision based

APHIS’s conclusion that forage alfalfa will not be contaminated is also

arbitrary and capricious. APHIS baldly concluded that such gene

transmission is not likely because farmers typically harvest alfalfa forage

fields before the seed matures. APHIS failed to consider, however, that

because of weather-which is beyond a farmer’s control-a farmer cannot

effects”).

APHIS’s reasoning that farmers will not “necessarily” be prohibited from

labeling their products as organic is wholly inadequate. First, the statement

itself is equivocal; even APHIS is uncertain whether farmers can still label

their products organic under the federal government’s organic standards.

permits. Third, and most importantly, APHIS’s comment simply ignores that