By Dan Levine The Daily Recorder September 3, 2008
A high-stakes Ninth Circuit U.S. Court of Appeals case bore all the signs of a John Grisham plot line.
The plaintiffs seek to block Monsanto - a company assailed by food activists in the genetically modified crop debate - from selling its herbicide-resistant alfalfa seed. And they drew a good panel, with two of the three judges - Mary Schroeder and Betty Fletcher - being stalwart environmentalist allies.
Then, the drama. Fletcher broke her leg. Judge N. Randy Smith stepped in to replace her at argument. Smith hails from Idaho, was raised by an alfalfa farmer there, and generally takes a dim view of environmentalists challenging the decisions of federal agencies.
Were it fiction, this would have kicked off 400 pages of intrigue. But in real life, the outcome belied any conspiracies: The plaintiffs still prevailed in a ruling released Tuesday, and Smith was left to pen a short dissent.
Federal regulators erred by approving Monsanto's alfalfa seed without a thorough environmental review, Schroeder wrote. She was joined by Central District Judge Valerie Baker Fairbank, sitting by designation.
"This is a landmark decision," said George Kimbrell of the Washington, D.C.-based Center for Food Safety, which argued for the plaintiffs. "It's an appellate decision that, for the first time, holds that biological contamination from genetically engineered crops to conventional and organic crops is irreparable harm."
Kimbrell's group joined some alfalfa growers in challenging the U.S. Department of Agriculture's approval of Monsanto's Roundup Ready alfalfa. The seed is genetically altered to withstand one of Monsanto's herbicides, so farmers can spray for weeds without damaging their crop. Environmentalists and organic farmers argue that the genetically modified strain is likely to overrun conventional alfalfa.
Northern District Judge Charles Breyer found that the government should have conducted an intensive Environmental Impact Statement before deregulating Monsanto's product. Last year he issued a national injunction preventing farmers from planting Roundup Ready alfalfa until the review is done.
The government and Monsanto argued Breyer's injunction was too broad. Other measures - like buffer zones between fields - could be used, they said. But Schroeder didn't go for it.
"With respect to harm, [Breyer] found that genetic contamination of organic and conventional alfalfa had already occurred," Schroeder wrote, "and it had occurred while Monsanto and Forage Genetics had contractual obligations in place that were similar to their proposed mitigation measures."
In dissent, Smith argued Breyer was wrong to have granted an injunction without holding an evidentiary hearing first.
"Instead of giving deference to the agency's expertise . the majority gives deference to the district court despite its wholesale rejection of the agency's proposal and its failure to hold an evidentiary hearing," Smith wrote.
Schroeder had argued such a hearing would just duplicate the environmental review the agency was supposed to conduct in the first place.
Kimbrell said that at oral argument, Smith peppered both sides with tough questions, and Fairbank didn't say a word. The ruling will help plaintiffs in other genetically modified crop cases, Kimbrell said, including one before Northern District Judge Jeffrey White in San Francisco over sugar beets.
Monsanto was represented by Maureen Mahoney, a Latham & Watkins partner in Washington, D.C. Reached late Tuesday afternoon, Mahoney said she would refer a message to the client. Monsanto did not call by press time.
http://www.law.com/jsp/ca/PubArticleCA.jsp?id=1202424229687
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