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Monsanto Appeal goes to Supreme Court

Farmers who were not already using Monsanto’s Roundup Ready alfalfa seeds have not been able to purchase them since a 2007 injunction went into effect.

But after losing at the U.S. District Court and the Ninth Circuit Court of Appeals, both based in San Francisco, Monsanto won a cherished writ of certiorari from the Supreme Court.  Here’s how the high court summarized its upcoming review:

“In this case, after finding a violation of the National Environmental Policy Act (“NEPA”), the district court imposed, and the Ninth Circuit affirmed, a permanent nationwide injunction against any further planning of a valuable genetically-engineered crop, despite overwhelming evidence that less restrictive measures proposed by an expert federal agency would eliminate any non-trivial risk of harm.”

“The questions presented are:

“1. Whether the Ninth Circuit erred in holding that NEPA plaintiffs are specially exempt from the requirement of showing a likelihood of irreparable harm to obtain an injunction.

“2. Whether the Ninth Circuit erred in holding that a district court may enter an injunction sought to remedy a NEPA violation without conducting an evidentiary hearing sought by a party to resolve genuinely disputed facts directly relevant to the appropriate scope of the requested injunction.

“3. Whether the Ninth Circuit erred when it affirmed a nationwide injunction entered prior to this Court’s decision in Winter v. NRDC, 129 S Ct. 365 (2008), which sought to remedy a NEPA violation based on only a remote possibility of reparable harm.”

Attorneys for Monsanto were given a Feb. 25, 2010 deadline to file their written arguments with the Supreme Court.  The respondents, led by the San Francisco-based Center for Food Safety, are to file 30 days later–by March 25, 2010.

With some irony, those written briefs are due after the Feb. 16, 2010 deadline for comment on the draft Environmental Impact Statement for Roundup Ready alfalfa, which is being completed by the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service.

A final EIS could clear the way for Monsanto to sell the genetically modified seeds again.  However, with its other GM seeds, Monsanto does not want the Ninth Circuit’s precedence to stand.

One amicus brief filed to support Monsanto’s position said the Ninth Circuit “virtually requires a federal court to grant an injunction against proposed federal action whenever it finds that the federal government has not adequately completed a required environmental impact statement…”

While it has not yet faced an injunction against selling its Round Up Ready sugar beats, a U.S. District Court has already ordered the full EIS for Monsanto sugar beet seeds.

Roundup Ready alfalfa seeds were barely on the market when federal Judge Charles R. Breyer shut Monsanto down with the injunction.  Roundup Ready sugar beets were taking about 90 percent of the market, before federal Judge Jeffery White ruled USDA erred in approving them without an EIS.

Monsanto makes a glyphosate-based herbicide called Roundup.  Its seeds are resistant to the herbicide, thus the name “Roundup Ready.”

On its Web site, the Center for Food Safety expresses its interest in the case this way:

“Alfalfa is the fourth most widely grown crop in the U.S. and a key source of dairy forage. It is the first perennial crop to be genetically engineered. It is open-pollinated by bees, which can cross-pollinate at distances of several miles, spreading the patented, foreign DNA to conventional and organic crops.

“Such biological contamination threatens the livelihood of organic farmers and dairies, since the U.S. Organic standard prohibits genetic engineering, and alfalfa exporters, since most overseas governments also reject GE-contaminated crops.

“We trust the Supreme Court will uphold farmers right to choose their crop of choice and protect us from the constant fear of contamination from GE crops,” said Phil Geertson, an alfalfa farmer based in Idaho.”

Monsanto’s Stephen P. Walker says the Supreme Court’s decision will be important to America’s farmers.  “We believe alfalfa growers deserve choice in the products that are available to them,” he says.

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