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Geertson Seed Farms v. Johanns
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
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
