Wednesday, March 02, 2011

Ninth Circuit Tells Organic Farmers To Beet It

Apologies for the groan-worthy pun in the title, but what did you expect in a case involving sugar beets? Sugar beets, in case you don’t know (we didn’t), are responsible for 44% of the domestic refined sugar supply. In the past few years, Monsanto and others have developed genetically engineered sugar beets that can tolerate herbicides – these are known as Roundup Ready sugar beets. The sugar produced from these genetically engineered beets is identical to conventional sugar beet sugar, and both the US and EU have approved the sugar as safe.

Notwithstanding this, for the last several years, there has been a back-and-forth brawl between organic farmers and the Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS). DOA delegated to APHIS the responsibility for regulating genetically engineered “plant pests.” Roundup Ready beets originally fell within this category because the modified gene sequence included donor DNA from an organism that is a plant pest. But for the past few years, APHIS has been trying to completely or partially deregulate genetically engineered sugar beets, and has been sued repeatedly by organic farmers as a result. In 2005, APHIS attempted to completely deregulate Roundup Ready sugar beets, but a district court blocked that attempt in the aptly-named Sugar Beets I. Undeterred, APHIS went back to the drawing board and has again taken action to partially deregulate Roundup Ready sugar beets. In the meantime, in August 2010 APHIS issued permits authorizing the planting of Roundup Ready sugar beet stecklings (stecklings are baby beet plants that have neither roots nor seeds). These permits specifically called for the destruction of the stecklings before they could flower or cross-pollinate, unless APHIS issued new permits or took other regulatory action that would allow the stecklings to survive and mature. Again, the organic farmers sued, and again the district court sided with the farmers, issuing a preliminary injunction and ordering the destruction of the stecklings in a case called – you guessed it – Sugar Beets II.

This time, however, the Ninth Circuit overturned the injunction, holding that the plaintiffs had not established that irreparable harm was “likely,” as opposed to merely possible. Center for Food Safety v. Vilsack, __ F.3d __, 2011 WL 676187, at *5 (9th Cir. Feb. 25, 2011). The court found the record barren of any evidence that planting the stecklings would lead to contamination or cross-pollination, and thus the farmers’ concerns were overblown. Id. Although the farmers raised Cain (cane?) about the possibility that the stecklings would in the future blossom and cross-pollinate with organic sugar beets, the court found that these fears were nothing more than speculative forecasts about future regulatory decisions, and weren’t ripe for challenge until the potential regulations actually sprouted to life and took root. Id. at *6. (OK, maybe we went a bit nuts with the agri-puns). In other words, wait until APHIS actually deregulates sugar beets before suing.

We found this case interesting, not just for the opportunity to make some pretty lame puns, but also because of how the Ninth Circuit handled a premature challenge to future potential regulation (“[A]n invocation to chaos theory is not sufficient to justify a preliminary injunction.”). But we have to confess, we also thought the opinion was worth mentioning because it quoted both Jurassic Park and Richard II. That has to be a first, and surely both Michael Crichton and William Shakespeare would be proud.

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