Center for Food Safety v. Johanns

• Decision Date: 01 September 2006
• Docket Number: No. Civ.03-00621 JMS/BMK.,Civ.03-00621 JMS/BMK.
• Citation: 451 F.Supp.2d 1165
• Parties: CENTER FOR FOOD SAFETY; Kahea; Friends of the Earth, Inc., and Pesticide Action Network North America, Plaintiffs, v. Mike JOHANNS, Secretary, U.S. Department of Agriculture; William T. Hawks, Under Secretary of Agriculture for Marketing and Regulatory Programs; Bobby R. Acord, Deputy Administrator, U.S. Department of Agriculture, Animal and Plant Health Inspection Service and Cindy Smith, Deputy Administrator, U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Biotechnology Regulatory Services Program, Defendants.
• Court: U.S. District Court — District of Hawaii

451 F.Supp.2d 1165

CENTER FOR FOOD SAFETY; Kahea; Friends of the Earth, Inc., and Pesticide Action Network North America, Plaintiffs, v. Mike JOHANNS, Secretary, U.S. Department of Agriculture; William T. Hawks, Under Secretary of Agriculture for Marketing and Regulatory Programs; Bobby R. Acord, Deputy Administrator, U.S. Department of Agriculture, Animal and Plant Health Inspection Service and Cindy Smith, Deputy Administrator, U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Biotechnology Regulatory Services Program, Defendants.

No. Civ.03-00621 JMS/BMK.

United States District Court, D. Hawai`i.

September 1, 2006.

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Isaac H. Moriwake, Paul H. Achitoff, Earthjustice Legal Defense Fund, Honolulu, HI, Joseph Mendelson, III, Washington, DC, for Plaintiffs.

Jean-Michel Voltaire, U.S. Department of Justice, Washington, DC, Jeannette H. Castagnetti, Margery S. Bronster, Bronster Crabtree & Hoshibata, Honolulu, HI, for Defendants.

AMENDED ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT¹

J. Michael SEABRIGHT, District Judge.

I. INTRODUCTION

From 2001 to 2003, four companies-ProdiGene, Monsanto, Hawaii Agriculture Research Center (HARC), and Garst Seed—planted corn and sugarcane that had been genetically modified to produce experimental pharmaceutical products. The companies modified the genetic structure of the corn or sugarcane so that, when harvested, the plants would contain hormones, vaccines, or proteins that could be used to treat human illnesses. For example, one company engineered corn to produce experimental vaccines for the Human Immunodeficiency Virus and the Hepatitis B virus, while another company engineered corn and sugarcane to produce cancer-fighting agents. These techniques are still experimental, and from 2001 to 2003 these four companies conducted limited field tests of these genetically engineered pharmaceutical-producing plant varieties ("GEPPVs") on Kauai, Maui, Molokai, and Oahu.

ProdiGene, Monsanto, HARC, and Garst Seed received permits to plant these crops from the United States Department of Agriculture, Animal and Plant Health Inspection Service ("APHIS"). The companies have already planted and harvested these crops, the permits have expired, and the companies are no longer planting crops pursuant to these permits.

The Plaintiffs argue that APHIS² broke the law in issuing these permits. Because these crops produce experimental pharmaceutical products, the Plaintiffs argue, their effect on Hawaii's ecosystem (especially Hawaii's 329 endangered and threatened species) is unclear. The Plaintiffs contend that these experimental crops could cross-pollinate with existing food crops, thus contaminating the food supply. The Plaintiffs also argue that animals that feed on corn (as well as animals further up the food chain that feed on corn-eating animals) would become unwitting carriers of experimental pharmaceutical products, causing even more widespread dissemination of these experimental vaccines, hormones, and proteins: According to the Plaintiffs, APHIS was required to evaluate the environmental impact of these genetically engineered crops before issuing the permits. In failing to do so, the Plaintiffs argue, APHIS violated both the National Environmental Policy Act ("NEPA") and the Endangered Species Act ("ESA"). The Plaintiffs also argue that these four permits were part of a broader "GEPPV program": a collection of policies and protocols which, taken together, form a comprehensive program for the promotion and regulation of GEPPV development and testing. The Plaintiffs contend that APHIS was required to consider the environmental impact of the program as a whole and that APHIS's failure to do so constitutes an additional violation of NEPA and the ESA. As a remedy for failing to follow NEPA and the ESA in implementing this "GEPPV program," the Plaintiffs seek a nationwide ban on all GEPPV open-air field testing until APHIS complies with NEPA and the ESA.

APHIS, on the other hand, argues that it fulfilled its statutory obligations. APHIS contends that it placed strict conditions on the permits to ensure that the genetically modified crops would not contaminate the environment, such that it complied with both the ESA and NEPA. According to APHIS, because the Plaintiffs have failed to demonstrate any environmental harm from these open-air field tests, the Plaintiffs' claims necessarily fail. And as for the alleged "GEPPV program," APHIS argues that its internal policies and protocols do not rise to the level of "final agency action"; consequently, APHIS contends, the Plaintiffs are not entitled to judicial review of this "program."

In addition to the dispute over the four permits and the alleged "GEPPV program," there is a dispute over a petition for rulemaking submitted to APHIS by the Plaintiffs. The Plaintiffs submitted their Petition to APHIS on December 16, 2002; the Petition sought five specific actions from APHIS, and the Plaintiffs argue that APHIS arbitrarily and capriciously denied the Petition. APHIS contends that the Plaintiffs' claims are not ripe and must be dismissed.

After more than two and a half years of contentious litigation, the court heard the parties' motions for summary judgment on July 7, 2006.³ Based on the following, the court GRANTS IN PART and DENIES IN PART the Plaintiffs' motion for summary judgment and GRANTS IN PART and DENIES IN PART the Defendants' motion for summary judgment.⁴ The court concludes that APHIS violated both the ESA and NEPA in issuing the four permits, but concludes that injunctive relief is not necessary to remedy these violations. The court then concludes that APHIS's alleged "GEPPV program" was neither a "final agency action" subject to review under the Administrative Procedure Act nor "agency action" subject to the requirements of the ESA. Finally, the court concludes that the Defendants are entitled to summary judgment as to the Plaintiffs' claim regarding their rulemaking Petition.

II. BACKGROUND

A. Legal Framework

A brief description of the legal framework applicable to the instant case may assist in placing the facts in context. The Plaintiffs allege APHIS violated the ESA, NEPA, and the Plant Protection Act ("PPA"); the court first discusses the Administrative Procedure Act ("APA"), which provides for judicial review of agency action, and then examines the ESA, NEPA, and the PPA.

1. Administrative Procedure Act

The APA allows for judicial review of latency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court[.]" 5 U.S.C. § 704. See also 5 U.S.C. § 702 ("A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof."); Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660, 668 (9th Cir.1998) ("[T]he APA, 5 U.S.C. § 702, provides for judicial review of agency actions if two requirements are met. First, the claimants must identify an `agency action.' .. . Second, the plaintiffs must establish they have suffered a legal wrong, or will be adversely affected or aggrieved within the meaning of a relevant statute." (Citations omitted.)). The APA defines "agency action" as "includ[ing] the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act[.]" 5 U.S.C. § 551(13). As discussed more fully infra, some statutes (such as the ESA) contain provisions allowing for greater judicial review than that provided in the APA, whereas many statutes (such as NEPA) do not contain their own review standards (such that the APA standards control).

As set forth in 5 U.S.C. § 706, the "arbitrary and capricious" standard of review applies to judicial review of agency actions:

The reviewing court shall —

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; [or]

(D) without observance of procedure required by law. . . .

2. Endangered Species Act

One of the express policies of the Endangered Species Act, 16 U.S.C. § 1531 et seq., is to ensure "that all Federal departments and agencies shall seek to conserve endangered species and threatened species[.]" 16 U.S.C. § 1531(c)(1). The ESA mandates interagency collaboration, through a series of procedural requirements outlined in the statute, to effectuate Congress's goals of protecting endangered and threatened plant and animal species. 16 U.S.C. §§ 1532, 1536. Specifically, the ESA requires the following:

[E]ach Federal agency shall . . . request of the Secretary [of the Interior] information whether any species which is listed or proposed to be listed [as an endangered species or a threatened species] may be present in the area of such proposed action. If the Secretary advises, based on the best scientific and commercial data available, that such species may be present, such agency shall conduct a biological assessment for the purpose of identifying any endangered species or threatened species which is likely to be affected by such action.

16 U.S.C. § 1536(c)(1); 50 C.F.R. § 402.12(c) (requiring federal agencies to request information regarding listed species and critical habitat from the Department of the Interior). See also 16 U.S.C. § 1532(15) (defining "Secretary"); 16 U.S.C. § 1533 (setting forth guidelines for listing endangered and...