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these farmers do not want to grow or feed to their livestock genetically
engineered alfalfa, regardless of how such alfalfa can be marketed.
AR 5511. See Blue Mountains Biodiversity Project, 1161 F.3d at 1214
statement. When an environmental impact statement is prepared and
economic or social and natural or physical environmental effects are
interrelated, then the environmental impact statement will discuss all of
these effects on the human environment”)).
Here, the economic effects on the organic and conventional farmers of the
government's deregulation decision are interrelated with, and, indeed, a
alteration of a plant specie's DNA through the transmission of the
genetically engineered gene to organic and conventional alfalfa. APHIS
was required to consider those effects in assessing whether the impact of
its proposed action is “significant.” And, in fact, APHIS did mention those
effects in the FONSI and EA, but, as explained above, its reasons for
tolerance to glyphosate-such a result would still not constitute a significant
environmental impact because APHIS has determined that the introduction
of that gene to alfalfa is harmless to humans and livestock, that is, it is not
toxic or pathogenic. Draft Transcript of January 19, 2007 Hearing at 54-55.
APHIS's position is based on its finding that the engineered gene is similar
into conventional or organic alfalfa is not a significant environmental impact
as a matter of law.
The Court accepts, as it must, the agency's determination that Roundup
Ready alfalfa does not have any harmful health effects on humans or
lifestock. See Natural Res. Defense Council, Inc. v. EPA, 863 F.2d 1420,
aware of none, which holds that an impact is not significant simply
because a federal agency determines that the major federal action does
not jeopardize the public's health and safety. The paucity of caselaw is
unsurprising given that one of Congress's express goals in adopting NEPA
was to “attain the widest range of beneficial uses of the environment
variety of individual choice.” 42 U.S.C. § 4331(b)(4).
To put it another way, if the government's action could eliminate all alfalfa,
there would be no dispute that such action has a significant environmental
impact, even though the primary impact is the economic effect on alfalfa
and livestock farmers. For those farmers who choose to grow non-
potentially eliminates or least greatly reduces the availability of a particular
plant-here, non-engineered alfalfa-has a significant effect on the human
environment. See 40 C.F.R. § 1508.27(b) (“A significant effect may exist
even if the Federal agency believes that on balance the effect will be
beneficial”).
been engineered to resist a herbicide “and in which the record suggests
that there's at least a chance that the [genetically engineered] gene could
be transmitted.” Draft Transcript of January 19, 2007 Hearing at 53. The
government's response highlights that APHIS is operating in uncharted
territory. In light of the Court's conclusion that the permanent modification
The Court cautions that it is not ruling that Roundup Ready alfalfa is
harmful to consumers or livestock. Rather, the significant impact that
requires the preparation of an EIS is the possibility that the deregulation of
Roundup Ready alfalfa will degrade the human environment by eliminating
a farmer's choice to grow non-genetically engineered alfalfa and a
Roundup-tolerant weeds. AR 5492. The resistance develops because of
the increased use of Roundup on the crops. APHIS found that such a
possible impact nevertheless does not warrant the preparation of an EIS
because weed species often develop resistance to herbicides and the
agricultural community is addressing the issue. “Alternative herbicides and
species often develop resistance to herbicides is tantamount to concluding
that because this environmental impact has occurred in other contexts it
cannot be significant. Nothing in NEPA, the relevant regulations, or the
caselaw support such a cavalier response.
The assertion that “good stewardship” may be the only defense against
reduce the proliferation of weeds, but if farmers are not engaging (or
cannot engage) in those practices, then the availability of those practices
does not ameliorate the potential environmental impact.
Finally, APHIS failed to evaluate the cumulative impact of the deregulation
of Roundup Ready alfalfa. 40 C.F.R. § 1508.7 (“ ‘Cumulative impact’ is the
Ready crop, APHIS has deregulated other Roundup Ready crops,
including corn and soybeans, and other deregulation petitions are pending.
While the deregulation of one crop in and of itself might not pose a
significant risk for the development of glyphosate resistant weeds, when all
the crops are considered cumulatively such a risk may become apparent.
development of Roundup resistant weeds that there are already other
Roundup Ready crops on the market, and more crops seeking to enter the
market, means that it did not take the “hard look” NEPA requires.
3. Increased use of glyphosate
In a related argument, plaintiffs assert that-even apart from the
Roundup Ready crops; in other words, APHIS must inquire whether the
introduction of the many Roundup Ready crops will together increase the
use of Roundup and impact the environment.
APHIS responds that there are other federal agencies, primarily the
Environmental Protection Agency (“EPA”), that are responsible for
glyphosate-resistant weeds, APHIS will have to examine the increased use
of glyphosate; thus, the Court declines to specifically rule on this claim.
The Court notes, however, that it is unclear from the record whether any
federal agency is considering the cumulative impact of the introduction of
so many glyphosate resistant crops; one would expect that some federal
merits and the Court's discussion above demonstrates why plaintiffs have
standing.
Article III standing requires “that the plaintiff show (1) an injury in fact that
is both (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) that the injury is fairly traceable to the
Phosphate Co., 420 F.3d at 938, 940). As the Court explained, supra,
however, economic interests that are interrelated with natural or physical
environmental effects fall within NEPA's zone of interests. The alfalfa
farmer plaintiffs' potential economic injury arises directly from the
environmental impact of APHIS's decision to deregulate Roundup Ready
that the planting of the genetically engineered crop will occur in the spring;
thus, it is premature for plaintiffs to show such injury. Plaintiffs need not
wait until the genetically engineered alfalfa is planted near their alfalfa
fields to bring suit, or until their fields are contaminated with genetically
engineered seed mixed with non-engineered seed. “[T]o require actual
plaintiffs have established a “reasonable probability” that their organic and
conventional alfalfa crops will be infected with the engineered gene,
especially given the undisputed concentration of alfalfa seed farms. They
have also established the reasonable probability of the development of
additional glyphosate resistant weeds. Such threatened injury is sufficient
requiring that the plaintiff conduct the same environmental investigation
that he seeks in his suit to compel the agency to undertake.”) (internal
quotation marks and citation omitted).
Finally, at oral argument the Court asked the government who would have
standing if, as it asserts, even the organic and conventional alfalfa farmers
Since the Court has concluded that APHIS must prepare an EIS before
approving the petition to deregulate Roundup Ready alfalfa, it need not
address plaintiffs' claims under the ESA and PPA. The agency's decision
may be different after it gathers the relevant data and considers the
public's comments on such data; accordingly, the Court will not now decide
comprehensive up-front environmental analysis to ensure informed
decision making to the end that ‘the agency will not act on incomplete
information, only to regret its decision after it is too late to correct.’ “ Blue
Mountains Biodiversity Project, 161 F.3d at 1216 (quoting Marsh v. Oregon
Natural Resources Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104
are raised as to whether (1) the deregulation of Roundup Ready alfalfa
without any geographic restrictions will lead to the transmission of the
engineered gene to organic and conventional alfalfa; (2) the possible
extent of such transmission; and (3) farmers' ability to protect their crops
from acquiring the genetically engineered gene. Substantial questions are
gene transmission is the problem of the organic and conventional farmers
and weeds always develop resistance to herbicides. As such reasons are
not “convincing” and do not demonstrate that the agency took a “hard look”
at the potential environmental impacts of its deregulation decision,
plaintiffs' motion for summary judgment on its NEPA claim that APHIS is
IT IS SO ORDERED.
alteration of a plant specie's DNA through the transmission of the
genetically engineered gene to organic and conventional alfalfa. APHIS
was required to consider those effects in assessing whether the impact of
its proposed action is “significant.” And, in fact, APHIS did mention those
effects in the FONSI and EA, but, as explained above, its reasons for
tolerance to glyphosate-such a result would still not constitute a significant
environmental impact because APHIS has determined that the introduction
of that gene to alfalfa is harmless to humans and livestock, that is, it is not
toxic or pathogenic. Draft Transcript of January 19, 2007 Hearing at 54-55.
APHIS's position is based on its finding that the engineered gene is similar
into conventional or organic alfalfa is not a significant environmental impact
as a matter of law.
The Court accepts, as it must, the agency's determination that Roundup
Ready alfalfa does not have any harmful health effects on humans or
lifestock. See Natural Res. Defense Council, Inc. v. EPA, 863 F.2d 1420,
aware of none, which holds that an impact is not significant simply
because a federal agency determines that the major federal action does
not jeopardize the public's health and safety. The paucity of caselaw is
unsurprising given that one of Congress's express goals in adopting NEPA
was to “attain the widest range of beneficial uses of the environment
variety of individual choice.” 42 U.S.C. § 4331(b)(4).
To put it another way, if the government's action could eliminate all alfalfa,
there would be no dispute that such action has a significant environmental
impact, even though the primary impact is the economic effect on alfalfa
and livestock farmers. For those farmers who choose to grow non-
potentially eliminates or least greatly reduces the availability of a particular
plant-here, non-engineered alfalfa-has a significant effect on the human
environment. See 40 C.F.R. § 1508.27(b) (“A significant effect may exist
even if the Federal agency believes that on balance the effect will be
beneficial”).
been engineered to resist a herbicide “and in which the record suggests
that there's at least a chance that the [genetically engineered] gene could
be transmitted.” Draft Transcript of January 19, 2007 Hearing at 53. The
government's response highlights that APHIS is operating in uncharted
territory. In light of the Court's conclusion that the permanent modification
The Court cautions that it is not ruling that Roundup Ready alfalfa is
harmful to consumers or livestock. Rather, the significant impact that
requires the preparation of an EIS is the possibility that the deregulation of
Roundup Ready alfalfa will degrade the human environment by eliminating
a farmer's choice to grow non-genetically engineered alfalfa and a
Roundup-tolerant weeds. AR 5492. The resistance develops because of
the increased use of Roundup on the crops. APHIS found that such a
possible impact nevertheless does not warrant the preparation of an EIS
because weed species often develop resistance to herbicides and the
agricultural community is addressing the issue. “Alternative herbicides and
species often develop resistance to herbicides is tantamount to concluding
that because this environmental impact has occurred in other contexts it
cannot be significant. Nothing in NEPA, the relevant regulations, or the
caselaw support such a cavalier response.
The assertion that “good stewardship” may be the only defense against
reduce the proliferation of weeds, but if farmers are not engaging (or
cannot engage) in those practices, then the availability of those practices
does not ameliorate the potential environmental impact.
Finally, APHIS failed to evaluate the cumulative impact of the deregulation
of Roundup Ready alfalfa. 40 C.F.R. § 1508.7 (“ ‘Cumulative impact’ is the
Ready crop, APHIS has deregulated other Roundup Ready crops,
including corn and soybeans, and other deregulation petitions are pending.
While the deregulation of one crop in and of itself might not pose a
significant risk for the development of glyphosate resistant weeds, when all
the crops are considered cumulatively such a risk may become apparent.
development of Roundup resistant weeds that there are already other
Roundup Ready crops on the market, and more crops seeking to enter the
market, means that it did not take the “hard look” NEPA requires.
3. Increased use of glyphosate
In a related argument, plaintiffs assert that-even apart from the
Roundup Ready crops; in other words, APHIS must inquire whether the
introduction of the many Roundup Ready crops will together increase the
use of Roundup and impact the environment.
APHIS responds that there are other federal agencies, primarily the
Environmental Protection Agency (“EPA”), that are responsible for
glyphosate-resistant weeds, APHIS will have to examine the increased use
of glyphosate; thus, the Court declines to specifically rule on this claim.
The Court notes, however, that it is unclear from the record whether any
federal agency is considering the cumulative impact of the introduction of
so many glyphosate resistant crops; one would expect that some federal
merits and the Court's discussion above demonstrates why plaintiffs have
standing.
Article III standing requires “that the plaintiff show (1) an injury in fact that
is both (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) that the injury is fairly traceable to the
Phosphate Co., 420 F.3d at 938, 940). As the Court explained, supra,
however, economic interests that are interrelated with natural or physical
environmental effects fall within NEPA's zone of interests. The alfalfa
farmer plaintiffs' potential economic injury arises directly from the
environmental impact of APHIS's decision to deregulate Roundup Ready
that the planting of the genetically engineered crop will occur in the spring;
thus, it is premature for plaintiffs to show such injury. Plaintiffs need not
wait until the genetically engineered alfalfa is planted near their alfalfa
fields to bring suit, or until their fields are contaminated with genetically
engineered seed mixed with non-engineered seed. “[T]o require actual
plaintiffs have established a “reasonable probability” that their organic and
conventional alfalfa crops will be infected with the engineered gene,
especially given the undisputed concentration of alfalfa seed farms. They
have also established the reasonable probability of the development of
additional glyphosate resistant weeds. Such threatened injury is sufficient
requiring that the plaintiff conduct the same environmental investigation
that he seeks in his suit to compel the agency to undertake.”) (internal
quotation marks and citation omitted).
Finally, at oral argument the Court asked the government who would have
standing if, as it asserts, even the organic and conventional alfalfa farmers
Since the Court has concluded that APHIS must prepare an EIS before
approving the petition to deregulate Roundup Ready alfalfa, it need not
address plaintiffs' claims under the ESA and PPA. The agency's decision
may be different after it gathers the relevant data and considers the
public's comments on such data; accordingly, the Court will not now decide
comprehensive up-front environmental analysis to ensure informed
decision making to the end that ‘the agency will not act on incomplete
information, only to regret its decision after it is too late to correct.’ “ Blue
Mountains Biodiversity Project, 161 F.3d at 1216 (quoting Marsh v. Oregon
Natural Resources Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104
are raised as to whether (1) the deregulation of Roundup Ready alfalfa
without any geographic restrictions will lead to the transmission of the
engineered gene to organic and conventional alfalfa; (2) the possible
extent of such transmission; and (3) farmers' ability to protect their crops
from acquiring the genetically engineered gene. Substantial questions are
gene transmission is the problem of the organic and conventional farmers
and weeds always develop resistance to herbicides. As such reasons are
not “convincing” and do not demonstrate that the agency took a “hard look”
at the potential environmental impacts of its deregulation decision,
plaintiffs' motion for summary judgment on its NEPA claim that APHIS is
IT IS SO ORDERED.
