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WASHINGTON – The U.S. Supreme Court heard oral arguments Tuesday in a case that could clarify the standards by which courts may grant injunctive relief.

A ruling in the case, Monsanto Co. v. Geertson Seed Farm, could also affect the kinds of remedies available to plaintiffs claiming violations of the National Environmental Policy Act.

Monsanto Co. is a developer of “Roundup Ready Alfalfa,” which was genetically engineered to be tolerant of an herbicide also made and marketed by the company.

The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service initially classified the product as regulated because of its genetic engineering, but in 2004 Monsanto petitioned the agency to deregulate the alfalfa. The agency declined to prepare an Environmental Impact Statement, and deregulated the product in 2005.

That ruling lifted all restrictions on planting, harvesting and selling the alfalfa.

A group including organic farmers and environmental organizations filed suit in federal court against USDA officials, alleging that the failure to prepare an Environmental Impact Statement before the deregulation finding violated NEPA and other statutes.

U.S. District Court Judge Charles R. Breyer -Justice Stephen Breyer’s brother – ultimately granted a preliminary injunction and then a permanent injunction prohibiting the alfalfa from being sold or planted until the USDA prepared an Environmental Impact Statement and revisits the deregulation decision.

Monsanto appealed, but the 9th Circuit affirmed, holding that the NEPA violation was uncontested, the record supported a finding of irreparable harm to the plaintiffs and the environment, and the district court conducted the proper balancing test in determining the appropriateness of injunctive relief.

Monsanto sought and was granted review by the Supreme Court.

Improvidently granted?

Gregory G. Garre, a partner in the Washington office of Latham & Watkins, argued on Mansanto’s behalf that the district court “short circuited the requisite inquiry into irreparable harm.”

But before he could continue that argument, Justice Samuel Alito interrupted, asking why the case shouldn’t be dismissed as improvidently granted since the USDA is now preparing an Environmental Impact Statement.

Garre noted that the final version of the statement is more than year away from being issued.

“This case involves an important legal issue about the propriety of granting injunctive relief,” he stated.

Garred argued that since the court ordered the government to do an impact statement, “it didn’t have to seriously get into the likelihood of irreparable harm. And we think that that is clear error.”

Deputy Solicitor General Malcolm L. Stewart argued on the government’s behalf in support of Monsanto. When Stewart claimed that the district court, instead of issuing an injunction, should have remanded the matter back to the USDA to prepare an impact report and restrict the use of the plant in the interim, Chief Justice John G. Roberts, Jr. seemed to agree.

“The court is stepping into the shoes of the agency,” Roberts said. “There is authority that you can’t do that at all.”

No standing?

Lawrence S. Robbins, a partner in the Washington office of Robbins, Russell, Englert, Orseck, Untereiner & Sauber, argued for the plaintiffs that the Monsanto’s biggest problem was a lack of standing.

“One of the standing requirements is imminence, that it must be an actual harm or an imminent harm” in imposing the injunction until the impact statement is prepared, Robbins stated.

Justice Antonin Scalia disagreed.

“It seems to me pretty doggone imminent if the agency has come before the court and said, ‘This kind of partial deregulation ought to be allowed and we favor it,’” Scalia said. “You know that the agency favors this degree of deregulation. Boy, I’d take a remand to the agency any day.”

Turning to the issue of the proper balancing test for injunctive relief, Robbins argued that the district court did not have to find, as Monsanto claimed, that there was a more than 50 percent chance of irreparable harm to the plaintiffs. Proving some irreparable harm could be enough, he said.

“If we were talking about the contamination of the water supply of New York City, would anyone suppose [with a] probability of [harm of] 10 percent rather than 50.9 percent that no one could go into court and get an injunction?” Robbins asked.

“This isn’t contamination of the New York City water supply,” Scalia replied. “It’s the creation genetically engineered alfalfa which spring up that otherwise wouldn’t exist….It’s not the end of the world.”

A decision from the Court is expected next term.

Justice Breyer recused himself from the case, presumably because of his brother’s involvement. Justice Clarence Thomas, who was formerly a corporate lawyer in the pesticide and agriculture division of Monsanto, did not recuse himself.

Questions or comments can be directed to the writer at: kimberly.atkins@lawyersusaonline.com

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