Center for Food Safety v. Vilsack, ___ F.Supp.2d ___(N.D. Cal August 13, 2010) No. C10-04038 JSW (2010 WL 3222482)

I wrote two months ago that Judge Jeffrey White of the United States District Court for the Northern District of California had 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. On Nov. 30 the judge issued a preliminary injunction ordering that hundreds of acres of GMO sugar beets planted in Oregon and Arizona in September had to be plowed under by December 13th. The judge allowed a delay in the effectiveness of the order to December 6th to give time for the parties to seek a stay from the Court of Appeals. On December 6th the Ninth Circuit stayed the injunction until at least Dec. 23 and set a briefing schedule far enough into 2011 that the seedlings will be removed and cold-stored in the ordinary course. The seedlings would still be subject to destruction but during the meantime they could also be moved to Canada, thereby bypassing the court’s findings. That action could be treated as contempt of the court’s earlier ruling, however.

This is a fascinating case and illustrates how industries and the executive branch can bypass a Federal Court. This is a case for the legal history books. What is amazing to me is that it is getting nearly zero coverage in the press. Here is one source:

Idaho Press-Tribune

Some quick background. The court 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 was 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”). 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.

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.