978-1285770178 Case Printout Case CPC-25-04 Part 2

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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.

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

reference to any material in support of APHIS’s conclusion that gene

any material to support its EA statement that non-genetically engineered

AR 5511. See Blue Mountains Biodiversity Project, 1161 F.3d at 1214

APHIS argues in its brief that the extent of any gene transmission is, in any

event, irrelevant because NEPA requires an agency to consider physical

environmental impacts, not economic or financial impacts. APHIS

(1983); see also San Luis Obispo Mothers for Peace v. Nuclear Regulatory

Comm’n, 449 F.3d 1016, 1029 (9th Cir.2006) (“[T]he essential analysis

must focus on the closeness of the relationship between the change in the

citation omitted); Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934,

intended by themselves to require preparation of an environmental impact

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

APHIS’s assertion that exports to Japan will not be harmed because Japan

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.