In a lively, hour-long session Tuesday, the U.S. Supreme Court for the first time heard arguments in a case involving USDA deregulation of a genetically engineered crop. The Court’s decision in that case, Monsanto v. Geertson Seed Farms (No. 09-475), should have a significant impact on several other challenges to agricultural biotechnology now pending in the lower courts and before the USDA.

The Geertson Seed case began as a court challenge to the National Environmental Policy Act (NEPA) review conducted by the USDA’s Animal and Plant Health Inspection Service (APHIS) in connection with efforts to commercialize a genetically engineered variety of alfalfa known as Roundup Ready. In February 2007, a district court in California ruled that APHIS should have prepared an Environmental Impact Statement (EIS) before granting a petition to deregulate Roundup Ready alfalfa. Since that time, the government has been working on the court-ordered EIS. The Draft EIS was issued on December 18, 2009, and the public comment period closed on March 3, 2010.

In the Geertson Seed case, the district court issued an injunction that prohibited farmers throughout the country from planting Roundup Ready alfalfa seeds until the Final EIS is issued. The Supreme Court accepted the Geertson Seed case to consider the propriety of this broad injunction, which the district court imposed despite strong scientific evidence that conditions on the use of Roundup Ready alfalfa proposed by the government would have virtually eliminated any chance of injury to the plaintiffs.

During oral arguments, the Court also focused on a separate issue: whether a remand to the agency, rather than an injunction, is the appropriate remedy when a district court finds a NEPA violation. The plaintiffs asked the Supreme Court to dismiss the case on the grounds that the district court’s order vacating APHIS’s deregulation determination revived Roundup Ready’s status as a regulated article under the Plant Protection Act. In the plaintiffs’ view, this means that the district court’s injunction cannot be modified in a way that would allow for the planting of Roundup Ready without a permit.

The issues now before the Supreme Court may change the course of current and future agricultural biotechnology litigation. The same plaintiffs who challenged APHIS’s deregulation of Roundup Ready alfalfa have already convinced a California district court that the agency’s NEPA review for Roundup Ready sugar beets was inadequate. The Supreme Court’s decision in the Geertson Seed case—which is expected by the end of June—will likely affect the scope of injunctive relief in the sugar beets litigation. Plaintiffs have also filed comment letters in several other APHIS deregulation proceedings, suggesting that more court challenges may follow. The Supreme Court’s ruling in Geertson Seed will also impact those proceedings, both at the regulatory stage and in any litigation that is filed. More broadly, the Court’s decision could set a new standard for granting injunctive relief in all NEPA cases.

Dorsey lawyers have been involved throughout the Geertson Seed litigation. For more information about the case and its implications, please contact Andrew Brown (612-340-5612) or Kathryn Kusske Floyd (202-442-3520).