USDA starts a judicial war with U.S. District Court Judge Jeffrey White

Center for Food Safety v. Vilsack, ___ F.Supp.2d ___(N.D. Cal August 13, 2010) No. C10-04038 JSW (2010 WL 3222482) Earlier ruling: http://www.earthjustice.org/sites/default/files/library/legal_docs/gmo-sugar-beets-order-denying-pi-3-16-10.pdf

Summary: USDA violated NEPA by approving genetically engineered Roundup Ready sugarbeets without preparing an environmental impact study.
Background: Judge Jeffrey White of the United States District Court for the Northern District of California issued a ruling on August 13, 2010 vacating a USDA decision to allow Monsanto to continue to plant Genuity® Roundup Ready® (GMO) sugar beets. This ruling followed a lawsuit filed on January 21, 2008 by the Center for Food Safety and other groups in the District Court for the Northern District of California challenging the deregulation of Roundup Ready sugarbeets by the USDA. These sugarbeets have been on the market since 2005. Based on the recent press reports, there seems to be some confusion regarding the nature of this ruling. First, this is a follow-up to an earlier ruling in September 2009, in which the Court ruled that the decision by the United States Department of Agriculture (“USDA”) and its Animal and Plant Health Inspection Service (“APHIS”) to deregulate a variety of genetically engineered sugar beets without preparing an environmental impact statement (“EIS”) violated the National Environmental Policy Act, 42 U.S.C. §§ 4321-4335 (“NEPA”). The same court subsequently held that it would not issue a preliminary injunction. The ruling issued on August 13, 2010 took up the issue of a permanent remedy. Although a permanent injunction was not issued, by issuing this vacatur, genetically engineered sugar beets are once again regulated articles pursuant to the Plant Protection Act. This has the effect of prohibiting all future plantings until further action by APHIS.
Potential Impact: The current crop of more than one million acres of the GMO sugar beets can still be harvested, but the next crop cannot be planted until after the USDA submits an environmental impact statement, which could take years and be the subject of further judicial and administrative scrutiny. This may be complicated by the fact that 95% of all sugar beets are now genetically engineered. Since half of the sugar in the United States comes from sugar beets, look for production problems next year. Any non-GMO seed stock would already have to be nearing harvest in order to be available next year. It is likely that there will be disruptions and price increases.

Update: On September 29, 2010 Judge White issued a third ruling that food safety groups were likely to succeed and ordered briefing on remedies on October 22, 2010. In the order the Judge noted that despite the earlier ruling on August 13, 2010 that had assumed that APHIS did not need to be enjoined because it was required to go through the lengthy environmental impact study requirement, APHIS issued four permits on September 3, 2010, just a few days later, to allow the planting of new seed. Obviously enraged by this flaunting of the court, the Judge ordered APHIS to “state under penalty of perjury exactly when and where it made the information public that the permits had been granted.” The Judge also noted that the nearly the entire seed crop was planted between September 3 and the date of his ruling on September 29th. My own research indicates that USDA Secretary of Agriculture Tom Vilsack announced on September 1, 2010 that APHIS would take steps to allow farmers to continue planting GMO sugar beets. The APHIS announcement states in part: “The Court’s ruling does not preclude the appropriate exercise of APHIS’ administrative discretion to authorize the future planting of Roundup Ready sugar beets pursuant to USDA’s regulatory authority and biotechnology regulations.” This is probably a surprise to the Court. USDA has also reportedly stated that it would have new regulations that would allow the planting of GMO beets by December of 2010.

UPDATE: On November 4, 2010 the USDA issued a Draft Environmental Assessment: Monsanto Company and KWS SAAT AG Supplemental Request for Partial Deregulation of Sugar Beet Genetically Engineered to be Tolerant to the Herbicide Glyphosate.” This is not a full Environmental Impact Study (“EIS”) but is the faster, shorter Environmental Assessment. You can download a copy at: http://www.regulations.gov/search/Regs/home.html#docketDetail?R=APHIS-2010-0047. The report concludes:

As summarized in Environmental Consequences Section on Socioeconomic Impacts, the preferred Alternative 2 is expected to have no or negligible impacts to vegetable beet seed production and vegetable beet root production, regardless of whether the vegetable beet or seed is intended to be certified as organic through the National Organic Program. Any impacts that could arise through: (1) gene flow from H7-1 sugar beet seed fields, volunteers, or bolters to vegetable beet seed fields or bolters; or (2) mixing of H7-1 sugar beet seed or beets with vegetable beet seed or beets are expected to be reduced to no or negligible impacts through the permit conditions proposed by APHIS. Furthermore, if breeder seed did have a low level presence of H7-1, steps can be taken to clean up the seed (see Environmental Consequences section). From the above analysis, it can be concluded that there should be no significant cumulative impacts on co-existence of growers who choose to grow conventional or organic crops and those who choose to grow H7-1 derived sugar beet varieties.

The District Court has reportedly set a deadline of November 15th for briefs on the question of whether the court should order the destruction of all GMO sugar beet rootstock that was planted in September.

USDA reference: http://www.usda.gov/wps/portal/usda/usdahome?contentidonly=true&contentid=2010/09/0437.xml

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About James Pray

Attorney with BrownWinick Law Firm in Des Moines, Iowa.
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