Ninth Circuit Grants Reprieve to Genetically Engineered Beet Seedlings

Monday, February 28, 2011

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Ninth Circuit Grants Reprieve to Genetically Engineered Beet Seedlings

By SHERRI M. OKAMOTO, Staff Writer

The Ninth U.S. Circuit Court of Appeals on Friday threw out a preliminary injunction requiring the destruction of genetically engineered sugar beet seedlings.

In a decision by Judge Sidney R. Thomas, the three-judge panel ruled the juvenile plants, known as “stecklings” did not pose a risk of irreparable harm to organic farmers and consumers.

This variety of sugar beet was were developed by the Montanto Company and KWS SAAT AG in 1988 to tolerate glyphosate, the active ingredient in certain herbicides.

These sugar beets were deemed “regulated articles” under the Plant Protection Act and accompanying regulations because they engineered with a gene sequence from a donor organism that is a plant pest, and so they could only be lawfully planted outdoors if authorized by the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service.

Last September, the agency issued permits to four seed companies—the intervenors in this action and one non-party—to grow stecklings of this type of sugar beet on limited acreage in remote geographic locations in Oregon and Arizona. The permits, which expire today, contained conditions prohibiting flowering or pollination of the seedlings.

With each permit, the agency also issued “Decision Worksheets” stating its determination that limited steckling growth would have no significant environmental impacts.

Less than a week later, the plaintiffs filed suit alleging issuance of the permits violated the National Environmental Policy Act because the agency improperly segmented its environmental analysis and did not consider the impact of the genetically engineered crop as a whole.

They contended this procedural injury harmed their concrete interests since the farmer members would have to take preventative measures and test their seed crops for contamination by the engineered plants.

U.S. District Judge Jeffrey S. White of the Northern District of California found the plaintiffs were likely to prevail last November and granted injunctive relief. The Ninth Circuit stayed application of the injunction until today.

Thomas concluded on Friday that the plaintiffs had not demonstrated a likelihood of irreparable harm since the “undisputed evidence indicates that the stecklings pose a negligible risk of genetic contamination, as the juvenile plants are biologically incapable of flowering or cross-pollinating” before the permits for their planting expire. He further noted the permits contain express conditions prohibiting flowering or pollination.

Although the plaintiffs proffered evidence of contamination risks in sugar beets and other crops in later stages of the plant’s life-cycle, Thomas emphasized that they did not provide any examples of contamination by pollination under the restricted conditions imposed by the permits.

“The alleged irreparable harms are little more than an expression that ‘life finds a way,’ ” Thomas said, citing Michael Crichton’s Jurassic Park. Such an “invocation to chaos theory,” he said, is not a sufficient basis to issue a preliminary injunction.

Judge Mary M. Schroeder and specially designated U.S. District Judge Mark W. Bennett of the Northern District of Iowa joined Thomas in his decision.

The case is Center for Food Safety v. Vilsack, 10-17719.