Neither side had a clear edge when the U.S. Supreme Court heard oral arguments in Monsanto Co. v. Geertson Seed Farms, the case involving GMO alfalfa (read the background on the case
). In fact, the justices seemed to wonder why the case wound up before the nation's highest court.
"What is it, exactly, that we are being asked to review?” Justice Sonia Sotomayor asked Malcolm Stewart, an attorney representing USDA's APHIS (Animal and Plant Health Inspection Service) and other respondents supporting Monsanto.
A group of alfalfa seed producers, organic farming organizations and nonprofit environmental groups had brought the suit, alleging that Roundup Ready alfalfa threatened their crop's genetic integrity. A California district court issued an injunction and ordered APHIS to prohibit sale of Roundup Ready alfalfa until an environmental impact statement could be prepared while APHIS revisited its original deregulation order. Monsanto appealed that decision to the Ninth Circuit Court, which twice refused to overrule the district court. The company then brought its appeal to the U.S. Supreme Court.
The Court seemed reluctant to take on a role that might be filled by APHIS, the agency charged with regulating genetically engineered organisms. In 2005, APHIS declined to prepare an environmental impact statement and deregulated Monsanto Co.'s Roundup Ready alfalfa, putting no limits on planting, harvesting or selling it. This came after a public comment period when 520 people and groups opposed Monsanto's position for deregulation while 137 supported it.
After Stewart insisted that the lower court's injunction did not usurp the agency's role in the case, Chief Justice John Roberts responded, "Well, you are short-circuiting notice and comment or whatever else is required. The reason we send this to an agency is because they are experts and all that. The agency is acting without the benefit of any input on the partial regulation.”
Justice Ruth Bader Ginsburg conceded that APHIS violated the National Environmental Policy Act in this case and should have prepared an environmental impact statement before acting in the matter. "I thought that under the APA [Administrative Procedure Act] at that point, the court is obliged to say, well, the agency engaged in conduct that was not in accord with law, and so we send it back,” Ginsburg said.
Lawrence Robbins, an attorney for Geertson et al., argued that Monsanto should have never brought the case to the Supreme Court. The fact remains, however, that Geertson et al., to be successful, must show irreparable harm as a result of APHIS' deregulation of Roundup Ready alfalfa.
"What individual plaintiff here stood to be harmed by what the agency had done?…Which one of them was within, what, 5 miles of any…field of the genetically engineered alfalfa?” asked Justice Antonin Scalia.
Robbins cited Paul Trask, a farmer from western South Dakota, who was at risk of cross-pollination and contamination of seed.
"From what? From somebody within 5 miles, 10 miles, 20 miles?” Scalia said. "The fact is, there isn't a single named plaintiff who has any claim that within the utmost limits of risk, he is at risk currently.”
Scalia seemed to think that returning the case to APHIS might be the best course of action for Geertson et al. "Boy, I would take a remand to the agency any day,” he said.
The oral arguments did little to clear things up. "I have a real problem if the whole appeal is over whether or not the district court should have accepted the agency's views," Sotomayor said. "The agency has told us that it has side-stepped going through all of the administrative steps it was required to….So how can we say that the district court acted improperly, when it's the government who is asking the district court to forgive it from doing something it's legally required to do?”
The Court has yet to issue a ruling on Monsanto vs. Geertson et al. Its eventual decision could have a big effect on future research involving genetically engineered organisms.