Ctr. for Food Safety v. Vilsack

• Decision Date: 17 May 2013
• Docket Number: No. 12–15052.,12–15052.
• Citation: 718 F.3d 829
• Parties: CENTER FOR FOOD SAFETY; Sierra Club; Trask Family Farms; Geertson Seed Farms; Beyond Pesticides; National Family Farm Coalition; The Cornucopia Institute; Dakota Resource Council; Western Organization of Resource Councils; Northeast Organic Dairy Producers Alliance; California Farmers Union, Plaintiffs–Appellants, v. Thomas J. VILSACK, Secretary of Agriculture; Cindy Smith, Administrator of the Animal & Plant Health Inspection Service, U.S. Department of Agriculture, Defendants–Appellees, Forage Genetics International LLC; John Grover; Daniel Mederos; Dan Scheps; Carl Simmons; Mark Watte; Monsanto Company; California Alfalfa and Forage Association; Eureka Seeds, Inc.; Gardena Alfalfa Seed Growers Association; Midwest Forage Association, Intervenor–Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

718 F.3d 829

CENTER FOR FOOD SAFETY; Sierra Club; Trask Family Farms; Geertson Seed Farms; Beyond Pesticides; National Family Farm Coalition; The Cornucopia Institute; Dakota Resource Council; Western Organization of Resource Councils; Northeast Organic Dairy Producers Alliance; California Farmers Union, Plaintiffs–Appellants,

v. Thomas J. VILSACK, Secretary of Agriculture; Cindy Smith, Administrator of the Animal & Plant Health Inspection Service, U.S. Department of Agriculture, Defendants–Appellees,Forage Genetics International LLC; John Grover; Daniel Mederos; Dan Scheps; Carl Simmons; Mark Watte; Monsanto Company; California Alfalfa and Forage Association; Eureka Seeds, Inc.; Gardena Alfalfa Seed Growers Association; Midwest Forage Association, Intervenor–Defendants–Appellees.

No. 12–15052.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 24, 2012.

Filed May 17, 2013.

George A. Kimbrell (argued), Center for Food Safety, San Francisco, CA; Paul H. Achitoff, Earthjustice, Honolulu, HI, for Plaintiffs–Appellants.

Shaun A. Goho, Emmett Environmental Law & Policy Clinic, Cambridge, MA, for amici curiae CROPP Cooperative, et al.

Deborah A. Sivas, Alicia E. Thesing, Leah J. Russin, and Matthew H. Armsby, Environmental Law Clinic, Stanford, CA, for amici curiae Center for Biological Diversity and Natural Resources Defense Counsel.

Stuart F. Delery, Acting Assistant Attorney General, Michael Jay Singer and Dana Kaersvang (argued), Appellate Staff, United States Department of Justice, Civil Division, Washington, D.C.; Ignacia S. Moreno, Assistant Attorney General, Andrew C. Mergen and Robert J. Lundman, United States Department of Justice, Environmental & Natural Resources Division, Washington, D.C.; James A. Booth, Carlynne S. Cockrum, Susan C. Golabek, and Andrew R. Varcoe, Of Counsel, United States Department of Agriculture, for Defendants–Appellees.

Richard P. Bress (argued), Philip J. Perry, Drew C. Ensign, and Andrew D. Prins, Latham & Watkins LLP, Washington, D.C., for Intervenor–Defendant–Appellee Monsanto Company.

B. Andrew Brown, Dorsey & Whitney LLP, Minneapolis, MN; Martha C. Luemers, Dorsey & Whitney LLP, Palo Alto, CA, for Intervenors–Appellees Forage Genetics International, LLC, California Alfalfa and Forage Association, Eureka Seeds, Inc., Midwest Forage Association, and Gardena Alfalfa Seed Growers Association.

Thomas R. Lundquist and J. Michael Klise, Crowell & Moring, LLP, Washington, D.C., for amici curiae American Farm Bureau Federation and Biotechnology Industry Organization.

Gilbert S. Keteltas and John F. Bruce, Baker & Hostetler, LLP, Washington, D.C.; Christopher H. Marraro, McKenna Long & Aldridge, LLP, Washington, D.C., for amici curiae American Sugarbeet Growers Association, et al.

Appeal from the United States District Court for the Northern District of California, Samuel Conti, Senior District Judge, Presiding. D.C. No. 3:11–cv–01310–SC.

Before: MARY M. SCHROEDER, SIDNEY R. THOMAS, and N. RANDY SMITH, Circuit Judges.

OPINION

SCHROEDER, Circuit Judge:

OVERVIEW

This appeal represents another chapter in the United States Department of Agriculture's (“USDA”) regulation of Roundup Ready Alfalfa (“RRA”). RRA is a plant genetically “engineered” or “modified” by the Monsanto Company and Forage Genetics International to be resistant to the herbicide glyphosate, which Monsanto sells under the trade name Roundup. Farmers do not normally apply an herbicide like Roundup to alfalfa fields because the herbicide kills not only the weeds, but also the alfalfa crop. RRA's tolerance to Roundup thus allows farmers to control weeds through herbicide application without harming the alfalfa plant. Monsanto markets RRA and Roundup together as a single crop system. From the outset, Monsanto and Forage Genetics's attempts to introduce RRA have been met with criticism and lawsuits from environmental groups concerned about the adverse effects that the plant may have on the environment and the organic food industry. An earlier phase of the litigation concerned the scope of an injunction prohibiting the planting of RRA pending completion of an Environmental Impact Statement (“EIS”) by the USDA's Animal Plant and Health Inspection Service (“APHIS”). Monsanto Co. v. Geertson Seed Farms, ––– U.S. ––––, 130 S.Ct. 2743, 2761–62, 177 L.Ed.2d 461 (2010).

Here, we consider the Record of Decision (“ROD”) issued by APHIS, which unconditionallyderegulated RRA on the ground that RRA was not a “plant pest” within the meaning of the term in the Plant Protection Act (“PPA”), 7 U.S.C. §§ 7701–7772. The plaintiffs in this action seek review of APHIS's deregulation of RRA. The plaintiffs are comprised of environmental interest groups and farmer organizations concerned about RRA's potential harms. Their concerns include the possibility that RRA will cross-pollinate with and alter the genetic structure of conventional alfalfa plants. This phenomenon, referred to as transgenic contamination, contaminates conventional alfalfa plants with the glyphosate-resistant gene. The plaintiffs and amici supporting them contend that transgenic contamination will harm the multi-billion dollar organic food industry. For example, they argue that the threat of transgenic contamination will force ranchers who raise organic meat to spend money testing the alfalfa they feed their animals to ensure that none of the alfalfa is genetically modified. If the ranchers cannot show that their animals are fed nonmodified alfalfa, they cannot market their meat as organic, which erodes the price premium they are able to charge. The plaintiffs also fear that the contamination of conventional alfalfa plants with the glyphosate-resistant gene could cause other countries to reduce or stop their importation of U.S.-grown alfalfa.

In addition to transgenic contamination, the plaintiffs in this action also fear that RRA's deregulation will lead to glyphosate-resistant weeds. The plaintiffs allege that farmers will respond to the weeds' increased glyphosate tolerance by applying even greater amounts of glyphosate as well as using mixtures of different herbicides. This increased herbicide use could harm plants and animals living near alfalfa fields, including species listed as threatened or endangered under the Endangered Species Act (“ESA”).

Concerned about these environmental harms, the plaintiffs in this appeal argue that APHIS's unconditional deregulation of RRA was improper for three reasons: First, APHIS violated the PPA and the Administrative Procedure Act (“APA”) in concluding that RRA was not a plant pest and failing to consider if RRA was a noxious weed; second, because of these errors in statutory interpretation, APHIS violated the ESA when it failed to consult with the Fish and Wildlife Service (“FWS”) about RRA's effects on endangered and threatened species, see16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a); and third, APHIS also violated the National Environmental Policy Act (“NEPA”) by unconditionally deregulating RRA without considering the option of partially deregulating the crop, an action that the agency had included in the EIS.

After the plaintiffs filed this action against the government in the district court, Monsanto, Forage Genetics, the corporate seed manufacturers and industry trade groups intervened as defendants. The district court upheld the agency's deregulation decision in a published opinion. Ctr. for Food Safety v. Vilsack, 844 F.Supp.2d 1006 (N.D.Cal.2012). It held that RRA is not a “plant pest” within the meaning of the statute, and that the agency's deregulation of the plant therefore did not violate the ESA or NEPA, because the agency's jurisdiction did not extend to organisms that are not plant pests. Id. at 1015–16, 1020–22.

We affirm, because the statute does not regulate the types of harms that the plaintiffs complain of, and therefore APHIS correctly concluded that RRA was not a “plant pest” under the PPA. Once the agency concluded that RRA was not a plant pest, it no longer had jurisdiction to continue regulating the plant. APHIS's lack of jurisdiction over RRA obviated the need for the agency to consult with the FWS under the ESA and to consider alternatives to unconditional deregulation under NEPA. See Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 665, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007). The district court thus properly entered summary judgment in favor of the defendants.

I. Regulatory Structure: the Coordinated Framework for Regulation of Biotechnology

Genetically modified plants like RRA are regulated by various agencies pursuant to the Coordinated Framework for Regulation of Biotechnology (“Coordinated Framework”). The Coordinated Framework is a 1986 policy statement from the Office of Science and Technology Policy that “describes the comprehensive regulatory policy for ensuring the safety of biotechnology research and products.” Coordinated Framework for Regulation of Biotechnology, 51 Fed.Reg. 23,302, 23,302 (June 26, 1986). The goal of this policy statement was to construct a framework that would not impair the combativeness or innovativeness of the United States's biotechnology industry. Proposal for a Coordinated Framework for Regulation of Biotechnology, 49 Fed.Reg. 50,856, 50,856 (proposed Dec. 31, 1984). Pursuant to the Coordinated Framework, regulation of genetically modified plants is divided among three agencies: the Food and Drug Administration (“FDA”), the Environmental Protection Agency (“EPA”), and the USDA, through APHIS. None are required to address the environmental or economic harms with which the plaintiffs are concerned. We deal briefly with the FDA and EPA's regulation of genetically modified plants before turning to the scope of APHIS's regulation under the PPA.

A. FDA Regulation of Genetically Modified Plants

The FDA's regulation of genetically modified plants is derived from its authority to regulate food safety under the Federal Food, Drug,...