Center for Food Safety v. Thomas Vilsack
718 F.3d 829
| 9th Cir. | 2013Background
- This case challenges APHIS's 2011 unconditional deregulation of Roundup Ready Alfalfa (RRA) under the Plant Protection Act (PPA).
- RRA is a glyphosate-resistant genetically engineered alfalfa developed by Monsanto and Forage Genetics; its deregulation is argued to threaten environmental and organic markets via transgenic contamination and increased herbicide use.
- APHIS classified Agrobacterium-derived RRA as a presumptive plant pest, then concluded RRA was not a plant pest and deregulated it; NEPA review produced a Finding of No Significant Impact.
- Following Geertson Seed Farms v. Johanns and subsequent Supreme Court guidance, APHIS prepared a final EIS and issued a Record of Decision (ROD) in 2011 unconditionally deregulating RRA.
- Plaintiffs allege APHIS violated the PPA and APA by misinterpreting plant pest harms, and allege ESA and NEPA violations due to lack of FWS consultation and failure to consider partial deregulation.
- The district court granted summary judgment for defendants, holding APHIS correctly found RRA not a plant pest and that deregulation did not require ESA consultation or NEPA reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is RRA a “plant pest” under the PPA? | RRA’s transgenic contamination and glyphosate effects render it a plant pest. | RRA does not cause plant injury/disease; cross-pollination and herbicide use are not plant-pest harms under the statute. | RRA is not a plant pest. |
| Did APHIS's unconditional deregulation violate the ESA by failing to consult with FWS? | If APHIS deregulated RRA it must consult under the ESA due to potential effects on listed species. | No discretionary action remains once RRA is deemed not a plant pest; no ESA consultation required. | No ESA violation; no FWS consultation required. |
| Did NEPA require considering partial deregulation as an alternative? | NEPA requires evaluating reasonable alternatives, including partial deregulation. | Because APHIS lacked jurisdiction to regulate if not a plant pest, no alternatives were required. | NEPA satisfied; no obligation to consider partial deregulation. |
| Was APHIS required to evaluate RRA as a noxious weed under the PPA? | RRA should be evaluated as a noxious weed due to potential indirect agricultural harms. | Noxious weed analysis is separate; not triggered by a deregulation petition under 340.6. | No noxious weed evaluation required here. |
| Is Monsanto v. Geertson Farms controlling for consistency with partial/deregulation decisions? | Monsanto requires consideration of alternatives; registry of plant pest status should align with that reasoning. | Monsanto addressed injunction scope; does not control whether RRA is a plant pest. | Monsanto not controlling here; district court's approach consistent with the record. |
Key Cases Cited
- Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743 (2010) (limited injunction scope; assumed jurisdiction, not dispositive of plant pest status)
- National Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007) (ESA consultation duty hinges on agency discretion)
- Skidmore v. Swift & Co., 323 U.S. 134 (1944) (agency interpretations deserve Skidmore deference depending on persuasiveness)
- United States v. Mead Corp., 533 U.S. 218 (2001) (agency interpretation and Chevron considerations in deference)
- Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147 (9th Cir. 2006) (NEPA hard look standard and alternatives analysis)
- Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) (limitations of pesticide regulation and framework context)