Goliath Gulps in GMO Litigation

Big business versus the little guy. The Ninth Circuit running amok. The specter of "frankencrops." All of these tropes -- some familiar to Supreme Court-watchers, one more novel -- were potentially in play last month when the Court considered Monsanto v. Geertson Seed Farms, its first case dealing with federal regulation of genetically modified organisms (GMOs). Yet the oral argument found the justices preoccupied with fine points of jurisdiction, administrative law, and equity, suggesting that their actual ruling may turn out to be a narrow one.

Geertson arose from a Bush Administration decision to deregulate "Roundup Ready" alfalfa, Monsanto's proprietary strain that has been engineered to resist Monsanto pesticides. Mr. Geertson and other conventional farmers sued the Animal and Plant Health Inspection Service under the National Environmental Policy Act (NEPA), claiming the agency failed to produce an environmental impact statement (EIS) that fully considers the risk of cross-pollination between GMO crops and conventional crops. If such contamination occurs, the plaintiffs' GMO-free status -- and thus their entire business model -- could be in jeopardy.

Since no EIS was prepared, the district court had little trouble finding a NEPA violation, a holding that went unchallenged in the Supreme Court, and the agency has in fact agreed to complete the EIS. The current issues emerged at the remedy phase, where Monsanto had intervened to contest the shape of the district court's injunction. Rather than accept Monsanto's proposed conditions for continued planting of Roundup Ready alfalfa, the district judge -- Charles Breyer, brother of Justice Stephen Breyer -- opted for an outright ban, allowing only the planting of previously purchased seed stocks. He also declined Monsanto's request for an evidentiary hearing on the scope of the injunction. The Ninth Circuit affirmed both rulings.

From these proceedings Monsanto engineered a cert-ready tale, often heard in these cases, of a rogue Ninth Circuit that has looked too favorably on environmental plaintiffs and lowered the bar for equitable relief. The company claims the lower courts' decisions "short-circuited" the traditional test for federal injunctions, either by relying on a mere "possibility" rather than a "likelihood" of irreparable harm from cross-pollination, or by outright equating the procedural NEPA violation with a substantive showing of harm.

Geertson's lawyers have defended Judge Breyer's analysis, arguing that he correctly balanced the harms in the case. Once certiorari was granted, they added a tactical twist: Monsanto, they assert, chose to challenge only the injunction issued by the district court, and not the court's underlying decision to vacate and remand the agency deregulation action -- the standard remedy for a NEPA violation. Since Roundup Ready alfalfa would remain illegal even if the injunction were lifted, they argue Monsanto's suit fails on "standing" grounds: its grievance simply cannot be redressed by the Supreme Court. This argument poses a serious test for the Court's conservative justices, who have eagerly endorsed similar defenses raised by industry against environmental plaintiffs. Will they do so when the roles are reversed?

Judging from the questions asked at argument, the justices aren't yet buying the standing claim. But Geertson did, it seems, sow the seeds of doubt with even some conservative justices about what Monsanto is really up to. Justice Alito immediately asked Monsanto's lawyer, former U.S. Solicitor General Gregory Garre, why the Court shouldn't dismiss the appeal as improvidently granted. Chief Justice Roberts -- despite his consternation that the district court had entered an injunction at all -- expressed concern that Monsanto was going after the injunction rather than the "vacatur" of the agency decision. But Justice Scalia, true to form, grilled Geertson's lawyer, Lawrence Robbins, about his own clients' standing.

On the merits, the defining moment in the oral argument was an exchange between Mr. Robbins and Justice Scalia about the meaning of "likelihood of irreparable harm," in which Scalia shared his skepticism about the entire case:

This isn't contamination of the New York City water supply. It's the creation of plants of -- of genetically engineered alfalfa which spring up that otherwise wouldn't exist. It doesn't even destroy the current plantings of non-genetically engineered alfalfa. This is not the end of the world. It really isn't. The most it does is make it difficult for those farmers who want to cater to the European market ....

This gives surprisingly little weight to the sort of argument that usually sways the conservative justices -- namely, that conventional farmers have made a rational business decision to "cater to" GMO-free markets. In a skillful parry worthy of his questioner's own wry wit, Robbins responded simply: "I don't think we bore the burden, an end-of-the-world burden, Justice Scalia."

So what will the Court decide? With Justice Breyer sitting out this case because of his brother's role below, Monsanto needs five votes from the remaining eight justices to upend the injunction -- potentially a tall order given the procedural thicket. Certainly, nothing said at oral argument in Geertson signals a sweeping ruling on the future of genetically modified crops, or even standards for injunctive relief in NEPA cases. But if Justice Scalia can be taken at his word, we know that whatever the Court does, it won't be the end of the world.

[Image via tlindenbaum.]