Ctr. for Food Safety v. Vilsack

• Decision Date: 13 August 2010
• Docket Number: No. C 08-00484 JSW,C 08-00484 JSW
• Citation: 734 F.Supp.2d 948
• Parties: CENTER FOR FOOD SAFETY, et al., Plaintiffs, v. Thomas J. VILSACK, et al., Defendants.
• Court: U.S. District Court — Northern District of California

734 F.Supp.2d 948

CENTER FOR FOOD SAFETY, et al., Plaintiffs,

v.Thomas J. VILSACK, et al., Defendants.

No. C 08-00484 JSW.

United States District Court, N.D. California.

Aug. 13, 2010.

George Andreas Kimbrell, Kateryna L. Rakowsky, Paige Michele Tomaselli, San Francisco, CA, Gregory C. Loarie, Earthjustice, Oakland, CA, Paul Henry Achitoff, Earthjustice, Honolulu, HI, for Plaintiffs.

Beverly Li, U.S. Department of Justice, John Robert Coleman, Luther L. Hajek, Philip Jonathan Perry, Janice M. Schneider, Latham & Watkins LLP, Rachel Gold Lattimore, Arent Fox LLP, Stanley H. Abramson, Nancy Southard Bryson, Alison Suthers, Holland & Hart LLP, Washington, DC, Holly J. Tate, Latham & Watkins, David J. Lazerwitz, Farella Braun & Martel LLP, Sarah G. Flanagan, Pillsbury Winthrop Shaw Pittman LLP, San Francisco, CA, J. Thomas Carrato, Monsanto Company, Mail Zone Einh, St. Louis, MO, Daniel M. Abuhoff, Harry Zirlin, William C. Weeks, Debevoise & Plimpton LLP, New York, NY, Walter Allan Edmiston, Loeb & Loeb LLP, Joanne Lichtman, Howrey LLP, Los Angeles, CA, Daniel Bukovac, Stinson Morrison Hecker LLP, Kansas City, MO, for Defendants.

ORDER REGARDING REMEDIES

JEFFREY S. WHITE, District Judge.

Now before the Court is the motion regarding remedies filed by plaintiffs Center for Food Safety, Organic Seed Alliance, Sierra Club, and High Mowing Organic Seeds (collectively, "Plaintiffs"). Plaintiffs seek a vacatur of the agency decision to deregulate genetically engineered sugar beets and a permanent injunction. Having considered the parties' arguments and relevant legal authority, the Court hereby GRANTS Plaintiffs' request for a vacatur but DENIES Plaintiffs' motion for a permanent injunction.¹

BACKGROUND

In September 2009, 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 March 16, 2010, the Court denied Plaintiffs' motion for a preliminary injunction. However, the Court admonished the parties that they should not assume that the Court's decision to deny a preliminary injunction was indicative of its views on a permanent injunction pending the full environmental review that APHIS is required to conduct. Rather, while the environmental review is pending, the Court warned the parties that it was inclined to order the Defendant-Intervenors to take all efforts, going forward, to use conventional seed. In light of Plaintiffs' showing of irreparable harm to the environment, the Court informed Defendants and Defendant-Intervenors that it was troubled by maintaining the status quo that consists of ninety-five percent of sugar beets being genetically engineered while APHIS conducts the environmental review that should have occurred before the sugar beets were deregulated. Moreover, the Court noted that the length of time that is necessary to conduct the full environmental review, as compared to the several months between the preliminary and permanent injunction hearing, could increase the likelihood and potential amount of irreparable harm to the environment.

Plaintiffs now move to vacate APHIS's decision to deregulate genetically engineered sugar beets and to enjoin all further planting, cultivation, processing, or other use of genetically engineered Roundup Ready sugar beets or sugar beet seeds, including but not limited to permitting any Roundup Ready sugar beet seed crop to flower pending APHIS's preparation of an EIS. In light of the Supreme Court's recent ruling in Monsanto Co. v. Geertson Seed Farms, --- U.S. ----, ----, 130 S.Ct. 2743, 2761, 177 L.Ed.2d 461 (2010), Plaintiffs clarify that the order they seek from the Court would be without prejudice to Defendants taking interim measures that are compliant with the Plant Protection Act, NEPA and the Administrative Procedure Act ("APA").

Defendants Edward T. Schafer, in his official capacity as Secretary of the United States Department of Agriculture, and Cindy Smith, in her official capacity as Administrator of the Animal and Plant Health Inspection Service (collectively, "Defendants"), and Defendant-Intervenors American Sugarbeet Growers Association,Ervin Schlemmer, Mark Wettstein, John Synder, and Duane Grant, American Crystal Sugar Company, the Amalgamated Sugar Company, Western Sugar Cooperative, Wyoming Sugar Company, LLC, United States Beet Sugar Association, Betaseed, Inc., Monsanto Company, Syngenta Seeds, Inc., and SESVanderHave USA, Inc. (collectively, "Defendant-Intervenors") all oppose Plaintiffs' motion.

The Court shall discuss additional facts as necessary in the analysis.

ANALYSIS

A. Applicable Legal Standards.

The APA provides that a "reviewing court shall ... hold lawful and set aside agency action, findings and conclusions found to be ... arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). "In all cases agency action must be set aside if the action was 'arbitrary, capricious, an abused of discretion, or otherwise not in accordance with law' or if the action failed to meet statutory, procedural, or constitutional requirements." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413-14, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Despite the mandatory language of the APA, the Ninth Circuit has held that although "ordinarily" regulations that are not promulgated in compliance with the APA are invalid, "when equity demands, the regulation can be left in place while the agency follows the necessary procedures." Idaho Farm Bureau Federation v. Babbitt, 58 F.3d 1392, 1405 (9th Cir.1995).

In the concurring opinion in Comcast Corp. v. F.C.C., 579 F.3d 1 (D.C.Cir.2009), Judge Randolph finds that the plain language of the statute mandates a reviewing court that finds an administrative rule or order unlawful to vacate the agency's action. Id. at 10 (Randolph, J., concurring) (" '[S]hall' means 'must.' I see no play in the joints."). Judge Randolph laments that occasionally the D.C. Circuit has remanded invalid rules without vacating them, and notes that "none of those decisions made even the slightest attempt to square the remand-only disposition with § 706(2)(A)." Id. at 11. He notes that although "[i]t is easy to postulate cases in which vacating an agency rule or order might have dire consequences, ... the prospect is not a reason to disregard the command of § 706(2)(A)." Judge Randolph opines that the better approach in such circumstances, and one that is consistent with the statutory language of the APA, is to require the losing agency to file a motion to stay the mandate "showing why its unlawful rule or order should continue to govern until the proceedings on remand are completed." Id. Although this Court agrees with Judge Randolph, it is bound by the Ninth Circuit. The Ninth Circuit does not appear to require the agency to meet the standards required for a stay. Nevertheless, the Ninth Circuit has only found remand without vacatur warranted by equity concerns in limited circumstances, namely serious irreparable environmental injury.

For example, in Idaho Farm, the Ninth Circuit remanded without vacatur based on concerns that immediately vacating the regulation threatened the potential extinction of an animal species-an irreparable environmental injury. Id., 58 F.3d at 1405-06. The court did not refer to any potential harm that would have been incurred by leaving the listing of the endangered species in place while the agency reconsidered its decision. Id. Moreover, the error in question was merely the agency's failure to make available for public comment one study that the agency had relied upon in making its decision. Id. at 1405.

Similarly, in Western Oil and Gas v. EPA, 633 F.2d 803, 813 (9th Cir.1980), the court was reluctant to vacate the challenged designation based on "a desire to avoid thwarting in an unnecessary way the operation of the Clean Air Act in the State of California during the time the deliberative process is reenacted." The court was "also influenced by the possibility of undesirable consequences which [it could not] predict that might result from invalidation of the designations." Id. Based on "the unusual circumstances" of the case, the court left the challenged designations in place while the agency corrected its errors. Id. Again, the court did not refer to any potential harm that would have been incurred by leaving the designation in place. Id.; see also Natural Resources Defense Council, Inc. v. United States Depart. of Interior, 275 F.Supp.2d 1136, 1143-44 (C.D.Cal.2002) ("Both Idaho Farm Bureau and Western Oil involved challenges to rulemaking under environmental statutes. In that context the Ninth Circuit expressed special concern for the potentially one-sided and irreversible consequences of environmental damage prompted by vacating defective rules during remand."). ²

The Ninth Circuit has not delineated specific standards governing when a court may remand an unlawful agency rule or order without vacatur. Therefore, the Court will apply the test set forth by the D.C. Circuit: "[t]he decision whether to vacate depends on the seriousness of the order's deficiencies (and thus the extent of doubt whether the agency chose correctly) and the disruptive consequences of an interim change that may itself be changed." Allied-Signal, Inc. v. United States Nuclear Regulatory Comm'n, 988 F.2d 146, 150 (D.C.Cir.1993). "[T]he second Allied-Signal factor is weighty only insofar as the agency may be able to rehabilitate its rational for the regulation." Comcast, 579 F.3d at 9.³

Defendants and Defendant-Intervenors argue that the Court should remandwithout vacating APHIS's...