Ctr. for Food Safety v. Vilsack

Citation844 F.Supp.2d 1006
Decision Date05 January 2012
Docket NumberCase No. 11–1310–SC.
PartiesCENTER FOR FOOD SAFETY, et al., Plaintiffs, v. Thomas J. VILSACK; Gregory Parham, Defendants.
CourtU.S. District Court — Eastern District of California

OPINION TEXT STARTS HERE

Paige Michele Tomaselli, George Andreas Kimbrell, Kateryna L. Rakowsky, Sylvia Shih–Yau Wu, San Francisco, CA, Paul Henry Achitoff, Earthjustice, Honolulu, HI, for Plaintiffs.

Paul David Barker, Jr., Bryan Scott Dearinger, Clifford Eugene Stevens, Jr., Eric Richardson Womack, United States Department of Justice, Philip Jonathan Perry, Andrew Prins, Claudia M. O'Brien, Janice M. Schneider, Latham & Watkins LLP, J. Michael Klise, Crowell & Moring LLP, Washington, DC, Martha Corcoran Luemers, Dorsey & Whitney LLP, Palo Alto, CA, B. Andrew Brown, Dorsey & Whitney LLP, Minneapolis, MN, Patrick John Ferguson, Latham & Watkins LLP, San Francisco, CA, for Defendants.

ORDER REGARDING CROSS–MOTIONS FOR SUMMARY JUDGMENT

SAMUEL CONTI, District Judge.

I. INTRODUCTION

Plaintiffs Center for Food Safety, et al. (Plaintiffs) bring this action for violations of the National Environmental Policy Act (“NEPA”), the Plant Protection Act (“PPA”), the Endangered Species Act (“ESA”), and the Administrative Procedure Act (“APA”) against Defendant Thomas J. Vilsack, in his official capacity as Secretary of the United States Department of Agriculture (“USDA”), and Defendant Gregory Parham, in his official capacity as the Administrator for the U.S. Department of Agriculture's Animal and Plant Health Inspection Service (“APHIS”) (collectively, Defendants).1Now before the Court are cross-motions for summary judgment filed by Defendants, Plaintiffs, and Intervenor Defendants.2 ECF Nos. 103 (“Defs.' MSJ”), 104 (Intervenor Defs.' MSJ”), 106 (“Pls.' MSJ”). These motions are fully briefed,3 and the Court held a hearing on December 9, 2011. For the reasons set forth below, the Court GRANTS Defendants and Intervenor Defendants' motions for summary judgment and DENIES Plaintiffs' motion for summary judgment.4

II. BACKGROUNDA. Roundup Ready Alfalfa

Plaintiffs challenge the decision of APHIS, an agency within the USDA, to deregulate genetically engineered alfalfa lines J101 and J1063, also known as Roundup Ready Alfalfa (“RRA”). Alfalfa is the fourth most widely grown crop in the nation, and the third most valuable. Final Environmental Impact Statement (“FEIS”) at 22–23.5 It is a perennial crop typically grown three to six years or more in succession. Id. at 22, 24. Because of its dense growth, alfalfa is often grown without using herbicides; less than 17 percent of conventional growers use any herbicides. Id. at 81, 146; ECF No. 42 (“Defs.' Answer”) ¶ 101.

RRA is designed to withstand direct application of glyphosate, the active ingredient in herbicide formulations manufactured and sold by Monsanto by the commercial name Roundup. See70 Fed. Reg. 36917–19; AR 1 1555. A farmer planting this genetically engineered form of alfalfa could spray glyphosate directly on or over crops to remove weeds without harming the alfalfa plants. See FEIS at 3–4. Monsanto and Forage Genetics developed RRA to “increase alfalfa forage and seed purity through better control of most of the weeds that impact forage and seed production;” “enable alfalfa production on marginal lands with severe weed infestations;” and “provide growers with a weed-control system that has a reduced risk profile for the environment”; among other things. Id. at 4.

Plaintiffs argue that deregulation of RRA poses significant risks to the environment. First, deregulation will increase the use of glyphosate, which is toxic to various plant and animal species. See FEIS at vi; Pls.' MSJ at 5. Second, replacing conventional alfalfa with RRA may worsen the problem of glyphosate resistant weeds. See FEIS at 132; Pls.' MSJ at 6. When glyphosate is used year after year, weeds naturally resistant to glyphosate survive, and may then reproduce and flourish. See FEIS at 131–35. Third, deregulation could result in increased gene flow from genetically engineered crops to conventional, organic, and wild plants. See FEIS at 17; Pls.' MSJ at 6. Plaintiffs contend that such transgenic contamination could result in the loss of natural varieties of alfalfa and hurt organic growers, whose customers demand conventional and organic foods free of transgenic content. Pls. MSJ at 7.

B. Initial Deregulation Determination

The PPA gives the Secretary of the USDA the authority to adopt regulations preventing the introduction and dissemination of plant pests. 7 U.S.C. § 7711(a). Pursuant to this authority, the USDA, through APHIS, regulates “organisms and products altered or produced through genetic engineering that are plant pests or are believed to be plant pests.” 7 C.F.R. § 340.0(a)(2) n. 1. Such products and organisms are known as “regulated articles.” See id. § 340.0.

APHIS originally considered RRA to be a regulated article. See70 Fed. Reg. 36917–36918. Accordingly, it was unlawful for any person to introduce RRA without first obtaining permission from APHIS. In April 2004, Monsanto and Forage Genetics submitted to APHIS a request for determination of nonregulated status for RRA pursuant to 7 C.F.R. § 340.6. AR 1 1553–1958. In 2005, after considering hundreds of public comments and preparing an Environmental Assessment, APHIS issued a Finding of No Significant Impact and decided to deregulate RRA unconditionally, without preparing an Environmental Impact Statement (“EIS”). 70 Fed. Reg. 36917–36918.

Approximately eight months later, various plaintiffs, including a number of the plaintiffs in the instant action, filed suit in this district to challenge APHIS's Environmental Assessment, Finding of No Significant Impact, and its decision to deregulate RRA. Geertson Seed Farms v. Johanns, No. 06–01075 CRB ( Alfalfa I ). The court granted summary judgment in favor of the plaintiffs, finding that APHIS had violated NEPA because its Environmental Assessment was inadequate and its Finding of No Significant Impact was arbitrary and capricious. Alfalfa I, 2007 WL 518624, *12, 2007 U.S. Dist. LEXIS 14533, *37–38 (N.D.Cal. Feb. 13, 2007). The Court found that APHIS's Environmental Assessment failed to answer “substantial questions” concerning the impacts of deregulation, including “whether [ ] the deregulation of RRA would lead to the transmission of the engineered gene to organic and conventional alfalfa” and “the possible extent of such transmission”; “farmers' ability to protect their crops from the genetically engineered gene”; and “the extent to which RRA will contribute to the development of Roundup-resistant weeds.” Id. Through subsequent orders, the court (1) vacated APHIS's deregulation of RRA; (2) ordered APHIS to prepare an EIS before it made any decision on Monsanto's deregulation petition; and (3) enjoined the planting of any RRA in the United States after March 30, 2007. 6Alfalfa I, 2007 WL 776146, at *2–3, 2007 U.S. Dist. LEXIS 21491, at *8–9 (N.D.Cal. Mar. 12, 2007); Alfalfa I, 2007 WL 1302981, at *9, 2007 U.S. Dist. LEXIS 32701, at *29 (N.D.Cal. May 3, 2007).

APHIS, Monsanto, and Forage Genetics appealed the Alfalfa I remedy. The Ninth Circuit affirmed the decision of the district court, but the Supreme Court reversed and remanded. Monsanto Co. v. Geertson Seed Farms, –––U.S. ––––, 130 S.Ct. 2743, 2761–62, 177 L.Ed.2d 461 (2010). The Supreme Court held that the district court “abused its discretion in enjoining APHIS from effecting a partial deregulation [pending APHIS's preparation of an EIS] and in prohibiting the possibility of planting in accordance with the terms of such a deregulation.” Id. at 2761. However, the Supreme Court left in place the district court's vacatur of APHIS's deregulation decision. Id. at 2756. Subsequently, Forage Genetics petitioned APHIS for such a partial deregulation while APHIS completed its EIS. AR 3 4361.

C. Current Deregulation Determination

In December 2009, APHIS published a draft EIS (“DEIS”) concerning the deregulation of RRA. The DEIS analyzed only two alternatives: (1) “no action,” i.e., the regulated status of RRA would remain unchanged; and (2) full deregulation. DEIS (AR 213640–15115) at 11–14. The DEIS dismissed partial deregulation options, such as imposing isolation distances and geographic restrictions to restrict transgenic contamination, because APHIS concluded that it lacked the regulatory authority to enforce such options. Id. at 14–15. Specifically, APHIS concluded that it had no jurisdiction to regulate RRA once it determined that RRA did not pose a plant pest risk. See id. at 14. During the 75–day comment period, APHIS received approximately 244,000 public comments on the DEIS. FEIS at 9.

In December 2010, APHIS released its final EIS (“FEIS”), which included a new, “co-preferred” alternative. See FEIS at 13. Under the new alternative, APHIS would partially deregulate RRA through a combination of isolation distances and geographic restrictions intended to reduce the risks of transgenic contamination. Id. In this alternative, a marketer of RRA would ensure that end users implemented the required management practices through contracts, licenses, or other means. Id.

In January 2011, APHIS issued a Record of Decision (“ROD”), fully deregulating RRA and allowing it to be grown without any restriction or oversight. ROD (AR 4988–1004) at 1. APHIS stated that the full deregulation alternative was consistent with the regulatory requirements in 7 C.F.R. part 340 and that RRA “do[es] not pose a greater plant pest risk than other conventional alfalfa varieties.” Id. at 5. APHIS acknowledged that full deregulation could lead to transgenic contamination through the transfer of pollen or seed mixing, increased use of glyphosate, and the evolution and proliferation of glyphosate-resistant weeds. Id. at 8–10. APHIS identified the no action alternative as the “environmentally preferred alternative,” but decided against adopting it because “it d[id] not meet the...

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