STEVENS, J., DISSENTING
MONSANTO CO. V. GEERTSON SEED FARMS
561 U. S. ____ (2010)
SUPREME COURT OF THE UNITED STATES
NO. 09-475
MONSANTO COMPANY, et al., PETITIONERS
v. GEERTSON SEED FARMS et al.
on writ of certiorari to the united states court of
appeals for the ninth circuit
[June 21, 2010]
Justice Stevens, dissenting.
The Court does not dispute the
District Court’s critical findings of fact: First, Roundup Ready
Alfalfa (RRA) can contaminate other plants. See App. to Pet. for
Cert. 38a, 54a, 62a. Second, even planting in a controlled setting
had led to contamination in some instances. See
id., at
69a–70a. Third, the Animal and Plant Health Inspection Service
(APHIS) has limited ability to monitor or enforce limitations on
planting. See
id., at 70a. And fourth, genetic
contamination from RRA could decimate farmers’ livelihoods and the
American alfalfa market for years to come. See
id., at
71a; see also
id., at 29a–30a. Instead, the majority
faults the District Court for “enjoining APHIS from partially
deregulating RRA.”
Ante, at 16.
In my view, the District Court may not have
actually ordered such relief, and we should not so readily assume
that it did. Regardless, the District Court did not abuse its
discretion when, after considering the voluminous record and making
the aforementioned findings, it issued the order now before us.
I
To understand the District
Court’s judgment, it is necessary to understand the background of
this litigation. Petitioner Monsanto Company (Monsanto) is a large
corporation that has long produced a weed killer called Roundup.
After years of experimentation, Monsanto and co-petitioner Forage
Genetics International (FGI) genetically engineered a mutation in
the alfalfa genome that makes the plant immune to Roundup. Monsanto
and FGI’s new product, RRA, is “the first crop that has been
engineered to resist a[n] herbicide” and that can transmit the
genetically engineered gene to other plants. See App. to Pet. for
Cert. 45a.
In 2004, in the midst of a
deregulatory trend in the agricultural sector, petitioners asked
APHIS to deregulate RRA, thereby allowing it to be sold and planted
nationwide. App. 101a. Rather than conducting a detailed analysis
and preparing an “environmental impact statement” (EIS), as
required by the National Environmental Policy Act of 1969 (NEPA)
for every “major Federal actio[n] significantly affecting the
quality of the human environment,” 42 U. S. C. §4332(2)(C),
APHIS merely conducted an abbreviated “environmental assessment”
(EA). During the 6-month period in which APHIS allowed public
comment on its EA, the agency received 663 comments, 520 of which
opposed deregulation. App. to Pet. for Cert. 29a. Farmers and
scientists opined that RRA could contaminate alfalfa that has not
been genetically modified, destroying the American export market
for alfalfa and, potentially, contaminating other plants and
breeding a new type of pesticide-resistant weed.
Id., at
29a–30a.
Despite substantial evidence that RRA genes
could transfer to other plants, APHIS issued a Finding of No
Significant Impact and agreed to deregulate RRA “unconditionally,”
ante, at 4. With no EIS to wait for and no regulation
blocking its path, petitioners began selling RRA. Farmers and
environmental groups swiftly brought this lawsuit to challenge
APHIS’s decision to deregulate, raising claims under NEPA and other
statutes.
The District Court carefully reviewed a long
record and found that “APHIS’s reasons for concluding” that the
risks of genetic contamination are low were “not
‘convincing.’ ” App. to Pet. for Cert. 38a. A review of
APHIS’s internal documents showed that individuals within the
agency warned that contamination might occur. APHIS rested its
decision to deregulate on its assertion that contamination risk is
“not significant because it is the organic and conventional
farmers’ responsibility” to protect themselves and the environment.
Ibid. Yet the agency drew this conclusion without having
investigated whether such farmers “can, in fact, protect their
crops from contamination.”
Ibid. The District Court
likewise found that APHIS’s reasons for disregarding the risk of
pesticide-resistant weeds were speculative and “not convincing.”
Id., at 46a. The agency had merely explained that if weeds
acquire roundup resistance, farmers can use “ ‘[a]lternative
herbicides.’ ”
Ibid. In light of the “acknowledged”
risk of RRA gene transmission and the potential “impact on the
development of Roundup resistant weeds,” the court concluded that
there was a significant possibility of serious environmental harm,
and granted summary judgment for the plaintiffs.
Id., at
54a; see also
id., at 45a.
At this point, the question of remedy arose.
The parties submitted proposed final judgments, and several
corporations with an interest in RRA, including Monsanto, sought
permission to intervene. The District Court granted their motion
and agreed “to give them the opportunity to present evidence to
assist the court in fashioning the appropriate scope of whatever
relief is granted.”
Id., at 54a (internal quotation marks
omitted).
While the District Court considered the
proposed judgments, it issued a preliminary injunction. Ordinarily,
the court explained, the remedy for failure to conduct an EIS is to
vacate the permit that was unlawfully given—the result of which, in
this case, would be to prohibit any use of RRA. See
id.,
at 55a; see also
id., at 65a. But this case presented a
special difficulty: Following APHIS’s unlawful deregulation order,
some farmers had begun planting genetically modified RRA.
Id., at 55a. In its preliminary injunction, the District
Court ordered that no new RRA could be planted until APHIS
completed the EIS or the court determined that some other relief
was appropriate. But, so as to protect these farmers, the court
declined to prohibit them from “harvesting, using, or selling” any
crops they had already planted.
Id., at 56a. And “to
minimize the harm to those growers who intend to imminently plant
Roundup Ready alfalfa,” the court permitted “[t]hose growers who
intend to plant [RRA] in the next three weeks and have already
purchased the seed” to go ahead and plant.
Id., at 58a
(emphasis deleted). Essentially, the court grandfathered in those
farmers who had relied, in good faith, on APHIS’s actions.
Before determining the scope of its final
judgment, the District Court invited the parties and intervenors to
submit “whatever additional evidence” they “wish[ed] to provide,”
and it scheduled additional oral argument.
Id., at
58a–59a. The parties submitted “competing proposals for permanent
injunctive relief.”
Id., at 60a. The plaintiffs requested
that no one—not even the grandfathered-in farmers—be allowed to
plant, grow, or harvest RRA until the full EIS had been prepared.
Id., at 64a. APHIS and the intervenors instead sought a
remedy that would “facilitat[e] the continued and dramatic growth”
of RRA: a “partial deregulation” order that would permit planting
subject to certain conditions, such as specified minimum distances
between RRA and conventional alfalfa and special cleaning
requirements for equipment used on the genetically modified crop.
See
id., at 60a–64a.
The court adopted a compromise. First, it
declined to adopt the APHIS-Monsanto proposal. APHIS itself had
acknowledged that “gene transmission could and had occurred,” and
that RRA “could result in the development of Roundup-resistant
weeds.”
Id., at 61a–62a. In light of the substantial
record evidence of these risks, the court would not agree to a
nationwide planting scheme “without the benefit of the development
of all the relevant data,” as well as public comment about whether
contamination could be controlled.
Id., at 68a. The
“partial deregulation” proposed by petitioners, the court noted,
was really “deregulation with certain conditions,”
id., at
69a—which, for the same reasons given in the court’s earlier order,
requires an EIS,
ibid. The court pointed out numerous
problems with the APHIS-Monsanto proposal. Neither APHIS nor
Monsanto had provided “evidence that suggests whether, and to what
extent, the proposed interim conditions” would actually “be
followed,” and comparable conditions had failed to prevent
contamination in certain limited settings.
Id., at
69a–70a. APHIS, moreover, conceded that “it does not have the
resources to inspect” the RRA that had already been planted, and so
could not possibly be expected “to adequately monitor the more than
one million acres of [RRA] intervenors estimate [would] be planted”
under their proposal.
Ibid. That was especially
problematic because any plan to limit contamination depended on
rules about harvesting, and farmers were unlikely to follow those
rules.
Id., at 71a. “APHIS ha[d] still not made any
inquiry” into numerous factual concerns raised by the court in its
summary judgment order issued several months earlier.
Id.,
at 70a.
Next, the court rejected the plaintiffs’
proposed remedy of “enjoin[ing] the harvesting and sale of already
planted” RRA.
Id., at 76a. Although any planting or
harvesting of RRA poses a contamination risk, the court reasoned
that the equities were different for those farmers who had already
invested time and money planting RRA in good-faith reliance on
APHIS’s deregulation order. And small amounts of harvesting could
be more easily monitored. Rather than force the farmers to tear up
their crops, the court imposed a variety of conditions on the
crops’ handling and distribution.
Id., at 77a.
As to all other RRA, however, the court sided
with the plaintiffs and enjoined planting during the pendency of
the EIS. Balancing the equities, the court explained that the risk
of harm was great. “[C]ontamination cannot be undone; it will
destroy the crops of those farmers who do not sell genetically
modified alfalfa.”
Id., at 71a. And because those crops
“cannot be replanted for two to four years,” that loss will be even
greater.
Ibid. On the other side of the balance, the court
recognized that some farmers may wish to switch to genetically
modified alfalfa immediately, and some companies like Monsanto want
to start selling it to them just as fast. But, the court noted, RRA
is a small percentage of those companies’ overall business; unsold
seed can be stored; and the companies “ ‘have [no] cause to
claim surprise’ ” as to any loss of anticipated revenue, as
they “were aware of plaintiffs’ lawsuit” and “nonetheless chose to
market” RRA.
Id., at 72a.
Thus, the District Court stated that it would
“vacat[e] the June 2005 deregulation decision”; “enjoi[n] the
planting of [RRA] in the United States after March 30, 2007,” the
date of the decision, “pending the government’s completion of the
EIS and decision on the deregulation petition”; and impose
“conditions on the handling and identification of already-planted
[RRA].”
Id., at 79a. On the same day, the court issued its
judgment. In relevant part, the judgment states:
“The federal defendants’ June 14, 2005
Determination of Nonregulated Status for [RRA] is VACATED. Before
granting Monsanto’s deregulation petition, even in part, the
federal defendants shall prepare an [EIS]. Until the federal
defendants prepare the EIS and decide the deregulation petition, no
[RRA] may be planted… . [RRA already] planted before March 30,
2007 may be grown, harvested and sold subject to the following
conditions.”
Id., at 108a–109a.
II
Before proceeding to address the
Court’s opinion on its own terms, it is important to note that I
have reservations about the validity of those terms. The Court
today rests not only the bulk of its analysis but also the primary
basis for our jurisdiction on the premise that the District Court
enjoined APHIS from partially deregulating RRA in any sense. See
ante, at 9–11, 16–23.[
Footnote 1] That is a permissible, but not necessarily
correct, reading of the District Court’s judgment.
So far as I can tell, until
petitioners’ reply brief, neither petitioners nor the Government
submitted to us that the District Court had exceeded its authority
in this manner. And, indeed, the Government had not raised this
issue in any court at all. Petitioners did not raise the issue in
any of their three questions presented or in the body of their
petition for a writ or certiorari. And they did not raise the issue
in their opening briefs to this Court. Only after respondents
alleged that Monsanto’s injury would not be redressed by vacating
the injunction, insofar as RRA would still be a regulated article,
did petitioners bring the issue to the Court’s attention.
Explaining why they have a redressable injury, petitioners alleged
that the District Court’s order prevents APHIS from “implement[ing]
an[y] interim solution allowing continued planting.” Reply Brief
for Petitioners 5. APHIS, the party that the Court says was wrongly
“barred … from pursuing
any deregulation,” even “in
accordance with the procedures established by law,”
ante,
at 19, did not complain about this aspect of the District Court’s
order even in its reply brief.
Thus, notwithstanding that petitioners
“adequately
preserved their objection that the vacated
deregulation decision should have been replaced by APHIS’s proposed
injunction,”
ante, at 8 (emphasis added), the key legal
premise on which the Court decides this case was never adequately
presented. Of course, this is not standard—or
sound—judicial practice. See
Kumho Tire Co. v.
Carmichael,
526 U. S. 137, 159
(1999) (Stevens, J., concurring in part and dissenting in part).
Today’s decision illustrates why, for it is quite unclear whether
the Court’s premise is correct, and the Court has put itself in the
position of deciding legal issues without the aid of briefing.
In my view, the District Court’s judgment can
fairly be read to address only (1) total deregulation orders of the
kind that spawned this lawsuit, and (2) the
particular
partial deregulation order proposed to the court by APHIS. This
interpretation of the judgment is more consistent with the District
Court’s accompanying opinion, which concluded by stating that the
court “will enter a final judgment” “ordering the government to
prepare an EIS before [the court] makes a decision on Monsanto’s
deregulation petition.” App. to Pet. for Cert. 79a. The language of
that opinion does not appear to “ba[r] the agency from pursuing any
deregulation—no matter how limited,”
ante, at 19 (emphasis
deleted). This interpretation is also more consistent with APHIS’s
own decision not to contest what, according to the Court, was an
unprecedented infringement on the agency’s statutory authority.
To be sure, the District Court’s judgment is
somewhat opaque. But it is troubling that we may be asserting
jurisdiction and deciding a highly factbound case based on nothing
more than a misunderstanding. It is also troubling that we may be
making law without adequate briefing on the critical questions we
are passing upon. I would not be surprised if on remand the
District Court merely clarified its order.
III
Even assuming that the majority
has correctly interpreted the District Court’s judgment, I do not
agree that we should reverse the District Court.
At the outset, it is important to
observe that when a district court is faced with an unlawful agency
action, a set of parties who have relied on that action, and a
prayer for relief to avoid irreparable harm, the court is operating
under its powers of equity. In such a case, a court’s function is
“to do equity and to mould each decree to the necessities of the
particular case.”
Hecht Co. v.
Bowles,
321 U. S. 321, 329 (1944).
“Flexibility” and “practicality” are the touchtones of these
remedial determinations, as “the public interest,” “private needs,”
and “competing private claims” must all be weighed and reconciled
against the background of the court’s own limitations and its
particular familiarity with the case.
Id., at
329–330.[
Footnote 2]
When a district court takes on the equitable
role of adjusting legal obligations, we review the remedy it crafts
for abuse of discretion. “[D]eference,” we have explained, “is the
hallmark of abuse-of-discretion review.”
General Elec. Co.
v.
Joiner,
522 U. S. 136, 143
(1997). Although equitable remedies are “not left to a trial
court’s ‘inclination,’ ” they are left to the court’s
“ ‘judgment.’ ”
Albemarle Paper Co. v.
Moody,
422
U. S. 405, 416 (1975) (quoting
United States v.
Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807)
(Marshall, C. J.)). The principles set forth in applicable
federal statutes may inform that judgment. See
United
States v.
Oakland Cannabis Buyers’ Cooperative,
532 U. S. 483,
497 (2001) (“[A] court sitting in equity cannot ignore the judgment
of Congress, deliberately expressed in legislation” (internal
quotation marks omitted)). And historically, courts have had
particularly broad equitable power—and thus particularly broad
discretion—to remedy public nuisances and other
“ ‘purprestures upon public rights and properties,’ ”
Mugler v.
Kansas,
123 U. S. 623, 672
(1887),[
Footnote 3] which
include environmental harms.[
Footnote 4]
In my view, the District Court did not
“unreasonably exercis[e]” its discretion,
Bennett v.
Bennett,
208 U. S. 505, 512
(1908), even if it did categorically prohibit partial deregulation
pending completion of the EIS. Rather, the District Court’s
judgment can be understood as either of two reasonable exercises of
its equitable powers.
Equitable Application of Administrative Law
First, the District Court’s decision can be
understood as an equitable application of administrative law. Faced
with two different deregulation proposals, the District Court
appears to have vacated the deregulation that had already occurred,
made clear that NEPA requires an EIS for any future deregulation of
RRA, and partially stayed the vacatur to the extent it affects
farmers who had already planted RRA.[
Footnote 5]
Under NEPA, an agency must prepare an EIS for
“every … major Federal actio[n] significantly affecting the quality
of the human environment.” 42 U. S. C. §4332(2)(C). Recall
that the District Court had found, on the basis of substantial
evidence, that planting RRA can cause genetic contamination of
other crops, planting in controlled settings had led to
contamination, APHIS is unable to monitor or enforce limitations on
planting, and genetic contamination could decimate the American
alfalfa market. In light of that evidence, the court may well have
concluded that any deregulation of RRA, even in a “limited …
geographic area” with “stringent … regulations governing harvesting
and distribution,”[
Footnote 6]
ante, at 19–20, requires an EIS under NEPA. See generally
D. Mandelker, NEPA Law and Litigation §§8:33–8:48 (2d ed. 2009)
(describing when an EIS is required); cf.
Marsh v.
Oregon Natural Resources Council,
490
U. S. 360, 371 (1989) (NEPA embodies “sweeping commitment” to
environmental safety and principle that “the agency will not act on
incomplete information, only to regret its decision after it is too
late to correct”). Indeed, it appears that any deregulation of a
genetically modified, herbicide-resistant crop that can transfer
its genes to other organisms and cannot effectively be monitored
easily fits the criteria for when an EIS is required.[
Footnote 7] That is especially so when, as
in this case, the environmental threat is novel. See
Winter v.
Natural Resources Defense Council,
Inc., 555 U. S. ___, ___ (2008) (slip op., at 13) (EIS is more
important when party “is conducting a new type of activity with
completely unknown effects on the environment”).[
Footnote 8]
Moreover, given that APHIS had already been
ordered to conduct an EIS on deregulation of RRA, the court could
have reasonably feared that partial deregulation would undermine
the agency’s eventual decision. Courts confronted with NEPA
violations regularly adopt interim measures to maintain the status
quo, particularly if allowing agency action to go forward risks
foreclosing alternative courses of action that the agency might
have adopted following completion of an EIS. See D. Mandelker, NEPA
Law and Litigation §4:61. The applicable regulations, to which the
District Court owed deference,[
Footnote 9] provide that during the preparation of an EIS,
“no action concerning the [agency’s] proposal shall be taken which
would … [h]ave an adverse environmental impact” or “[l]imit the
choice of reasonable alternatives.” 40 CFR §1506.1(a) (2009). As
exemplified by the problem of what to do with farmers who had
already purchased or planted RRA prior to the District Court’s
judgment, even minimal deregulation can limit future regulatory
options. “Courts must remember that in many cases allowing an
agency to proceed makes a mockery of the EIS process, converting it
from analysis to rationalization.” Herrmann, Injunctions for NEPA
Violations: Balancing the Equities, 59 U. Chi. L. Rev. 1263,
1289 (1992); see also see 40 CFR §1502.5 (EIS should be implemented
in manner assuring it “will not be used to rationalize or justify
decisions already made”).
Although the majority does not dispute that
the District Court could have reasonably concluded that NEPA
requires an EIS for even partial deregulation of RRA, it suggests
that any such conclusion would have been incompatible with the
court’s decision to permit limited harvesting by farmers who had
already planted RRA. See
ante, at 20.[
Footnote 10] I do not see the
“inconsisten[cy].”
Ibid. NEPA does not apply to actions by
federal courts. See 40 CFR §1508.12. Exercising its equitable
discretion to balance the interests of the parties and the public,
the District Court would have been well within its rights to find
that NEPA requires an EIS before the agency grants “Monsanto’s
deregulation petition, even in part,” App. to Pet. for Cert. 108a,
yet also to find that a partial stay of the vacatur was appropriate
to protect the interests of those farmers who had already acted in
good-faith reliance on APHIS.
Similarly, I do not agree that the District
Court’s ruling was “premature” because APHIS had not yet effected
any partial deregulations,
ante, at 19. Although it is
“for the agency to decide whether and to what extent” it will
pursue deregulation,
ante, at 17, the court’s application
of NEPA to APHIS’s regulation of RRA might have controlled any
deregulation during the pendency of the EIS. Petitioners and APHIS
had already come back to the court with a proposed partial
deregulation order which, the court explained, was incompatible
with its determination that there is a substantial risk of gene
spreading and that APHIS lacks monitoring capacity. That same
concern would apply to
any partial deregulation order. The
court therefore had good reason to make it clear, upfront, that the
parties should not continue to expend resources proposing such
orders, instead of just moving ahead with an EIS. Cf.
Railroad
Comm’n of Tex. v.
Pullman Co.,
312 U. S. 496, 500 (1941) (“The
resources of equity are equal to an adjustment that will avoid the
waste of a tentative decision”). Indeed, it was APHIS itself that
“sought to ‘streamline’ ” the process.
Ante, at
18.
Injunctive Relief
Second, the District Court’s judgment can be
understood as a reasonable response to the nature of the risks
posed by RRA. Separate and apart from NEPA’s requirement of an EIS,
these risks were sufficiently serious, in my view, that the court’s
injunction was a permissible exercise of its equitable
authority.
The District Court found that gene transfer
can and does occur, and that if it were to spread through open land
the environmental and economic consequences would be devastating.
Cf.
Amoco Production Co. v.
Gambell,
480 U. S. 531, 545
(1987) (“Environmental injury, by its nature, can seldom be
adequately remedied by money damages and is often permanent or at
least of long duration,
i.e., irreparable”). Although “a
mere possibility of a future nuisance will not support an
injunction,” courts have never required proof “that the nuisance
will occur”; rather, “it is sufficient … that the
risk of its happening is greater than a reasonable man
would incur.” 5 J. Pomeroy, A Treatise on Equity Jurisprudence and
Equitable Remedies, §1937 (§523), p. 4398 (2d ed. 1919). Once
gene transfer occurred in American fields, it “would be
difficult—if not impossible—to reverse the harm.”
Hollingsworth v.
Perry, 558 U. S. __, __ (2010)
(per curiam) (slip op., at 12).
Additional considerations support the District
Court’s judgment. It was clear to the court that APHIS had only
limited capacity to monitor planted RRA, and some RRA had already
been planted. The marginal threat posed by additional planting was
therefore significant. Injunctive remedies are meant to achieve a
“nice adjustment and reconciliation between the competing claims”
of injury by “mould[ing] each decree to the necessities of the
case.”
Weinberger v.
Romero-Barcelo, 456 U. S. 305, 312
(1982) (internal quotation marks omitted). Under these
circumstances, it was not unreasonable for the court to conclude
that the most equitable solution was to allocate the limited amount
of potentially safe RRA to the farmers who had already planted that
crop.[
Footnote 11]
The Court suggests that the
injunction was nonetheless too sweeping because “a partial
deregulation need not cause respondents any injury at all … if the
scope of the partial deregulation is sufficiently limited, the risk
of gene flow to their crops could be virtually nonexistent.”
Ante, at 21. The Court appears to reach this conclusion by
citing one particular study (in a voluminous record), rather than
any findings of fact.[Footnote
12] Even assuming that this study is correct, the Court ignores
the District Court’s findings that gene flow is likely and that
APHIS has little ability to monitor any conditions imposed on a
partial deregulation. Limits on planting or harvesting may operate
fine in a laboratory setting, but the District Court concluded that
many limits will not be followed and cannot be enforced in the real
world.[Footnote
13]
Against that background, it was
perfectly reasonable to wait for an EIS. APHIS and petitioners
argued to the District Court that partial deregulation could be
safely implemented, they submitted evidence intended to show that
planting restrictions would prevent the spread of the newly
engineered gene, and they contested “virtually every factual issue
relating to possible environmental harm.” Geertson Seed
Farms v. Johanns, 570 F. 3d 1130, 1135 (CA9
2009). But lacking “the benefit of the development of all the
relevant data,” App. to Pet. for Cert. 68a, the District Court did
not find APHIS’s and petitioners’ assertions to be convincing. I
cannot say that I would have found otherwise. It was reasonable for
the court to conclude that planting could not go forward until more
complete study, presented in an EIS, showed that the known problem
of gene flow could, in reality, be prevented.[Footnote 14]
The District Court’s decision that
more study was needed to assess whether limits on deregulation
could prevent environmental damage is further reinforced by the
statutory context in which the issue arose. A court’s equitable
discretion must be guided by “recognized, defined public policy.”
Meredith v. Winter Haven, 320 U. S. 228, 235
(1943); see also Hecht Co. v. Bowles, 321 U. S. 321, 331 (1944) (explaining
that when a court evaluates an agency’s decision against the
background of a federal statute, the court’s discretion “must be
exercised in light of the large objectives of the Act”). Congress
recognized in NEPA that complex environmental cases often require
exceptionally sophisticated scientific determinations, and that
agency decisions should not be made on the basis of “incomplete
information.” Marsh v. Oregon Natural Resources
Council, 490
U. S. 360, 371 (1989). Congress also recognized that agencies
cannot fully weigh the consequences of these decisions without
obtaining public comments through an EIS. See Robertson v.
Methow Valley Citizens Council, 490 U. S. 332, 350
(1989).[Footnote 15] While a
court may not presume that a NEPA violation requires an injunction,
it may take into account the principles embodied in the statute in
considering whether an injunction would be appropriate. This
District Court had before it strong evidence that gene transmission
was likely to occur and that limits on growing could not be
enforced. It also had a large amount of highly detailed evidence
about whether growing restrictions, even if enforced, can prevent
transmission. That evidence called into question the agency’s own
claims regarding the risks posed by partial deregulation. In
enjoining partial deregulation until it had the benefit of an EIS
to help parse the evidence, the court acted with exactly the sort
of caution that Congress endorsed in NEPA.
Finally, it bears mention that the
District Court’s experience with the case may have given it grounds
for skepticism about the representations made by APHIS and
petitioners. Sometimes “one judicial actor is better positioned
than another to decide the issue in question.” Miller v.
Fenton, 474
U. S. 104, 114 (1985). A “district court may have insights not
conveyed by the record.” Pierce v. Underwood,
487 U. S. 552,
560 (1988). In this case, the agency had attempted to deregulate
RRA without an EIS in spite of ample evidence of potential
environmental harms. And when the court made clear that the agency
had violated NEPA, the agency responded by seeking to
“ ‘streamline’ ” the process, ante, at 18,
submitting a deregulation proposal with Monsanto that suffered from
some of the same legal and empirical holes as its initial plan to
deregulate. Against that background, the court may have felt it
especially prudent to wait for an EIS before concluding that APHIS
could manage RRA’s threat to the environment.
* * *
The District Court in
this case was put in an “unenviable position.” Ibid. In
front of it was strong evidence that RRA poses a serious threat to
the environment and to American business, and that limits on RRA
deregulation might not be followed or enforced—and that even if
they were, the newly engineered gene might nevertheless spread to
other crops. Confronted with those disconcerting submissions, with
APHIS’s unlawful deregulation decision, with a group of farmers who
had staked their livelihoods on APHIS’s decision, and with a
federal statute that prizes informed decisionmaking on matters that
seriously affect the environment, the court did the best it could.
In my view, the District Court was well within its discretion to
order the remedy that the Court now reverses. Accordingly, I
respectfully dissent.
Footnote 1
See also ante, at 19–20
(“[T]he District Court barred the agency from pursuing any
deregulation—no matter how limited the geographic area in which
planting of RRA would be allowed, how great the isolation distances
mandated between RRA fields and fields for growing
non-genetically-engineered alfalfa, how stringent the regulations
governing harvesting and distribution, how robust the enforcement
mechanisms available at the time of the decision,
and—consequently—no matter how small the risk that the planting
authorized under such conditions would adversely affect the
environment in general and respondents in particular” (emphasis
deleted)).
Footnote 2
See also, e.g.,
Railroad Comm’n of Tex. v. Pullman Co., 312 U. S. 496, 500 (1941) (“The
history of equity jurisdiction is the history of regard for public
consequences… . There have been as many and as variegated
applications of this supple principle as the situations that have
brought it into play”); Seymour v. Freer, 8 Wall.
202, 218 (1869) (“[A] court of equity ha[s] unquestionable
authority to apply its flexible and comprehensive jurisdiction in
such manner as might be necessary to the right administration of
justice between the parties”). Indeed, the very “ground of this
jurisdiction” is a court’s “ability to give a more complete and
perfect remedy.” 2 J. Story, Equity Jurisprudence §924, p. 225
(M. Bigelow ed. 13th ed. 1886).
Footnote 3
See Steelworkers v.
United States, 361 U. S. 39, 60–61
(1959) (per curiam) (reviewing history of injunctions to
prevent public nuisances).
Footnote 4
See, e.g.,
Georgia v. Tennessee Copper Co., 206 U. S. 230 (1907)
(air pollution); Arizona Copper Co. v. Gillespie,
230 U. S. 46,
56–57 (1913) (water pollution).
Footnote 5
See Reply Brief for Federal
Respondents 3. There is an ongoing debate about the role of
equitable adjustments in administrative law. See, e.g.,
Levin, Vacation at Sea: Judicial Remedies and Equitable Discretion
in Administrative Law, 53 Duke L. J. 291 (2003). The parties
to this appeal and the majority assume that the District Court’s
remedy was crafted under its equity powers, and I will do the
same.
Footnote 6
One of the many matters not
briefed in this case is how limited a partial deregulation can be.
It is not clear whether the sort of extremely limited “partial
deregulations” envisioned by the Court, see ante, at
19–23, in which RRA is “deregulated” in one small geographic area
pursuant to stringent restrictions, could be achieved only through
“partial deregulation” actions, or whether they could also (or
exclusively) be achieved through a more case-specific permit
process. Under the applicable regulations, a regulated article may
still be used subject to a permitting process. See 7 CFR §§340.0,
340.4 (2010). These permits “prescribe confinement conditions and
standard operating procedures … to maintain confinement of the
genetically engineered organism.” Introduction of Organisms and
Products Altered or Produced Through Genetic Engineering, 72 Fed.
Reg. 39021, 39022 (2007) (hereinafter Introduction).
Ordinarily, “[o]nce an article has been deregulated,
APHIS does not place any restrictions or requirements on its use.”
Id., at 39023. As of 2007, APHIS had never—not
once—granted partial approval of a petition for nonregulated
status. USDA, Introduction of Genetically Engineered Organisms,
Draft Environmental Impact Statement, July 2007, p. 11, online
at http://www.aphis.usda.gov/brs/pdf/complete_ eis.pdf (as visited
June 18, 2010, and available in Clerk of Court’s case file). In
2007, APHIS began contemplating a “new system” to allow
for the release and use of genetically modified organisms, for
“special cases” in which there are risks “that could be mitigated
with conditions to ensure safe commercial use.” Introduction 39024
(emphasis added).
Footnote 7
See, e.g., 40 CFR
§1508.8 (2009) (determination whether an EIS is required turns on
both “[d]irect effects” and “[i]ndirect effects,” and “include[s]
those resulting from actions which may have both beneficial and
detrimental effects even if on balance the agency believes that the
effect will be beneficial”); §1508.27(b)(4) (determination whether
an EIS is required turns on “[t]he degree to which the effects on
the quality of the human environment are likely to be highly
controversial”); §1508.27(b)(5) (determination whether an EIS is
required turns on “[t]he degree to which the possible effects on
the quality of the human environment are highly uncertain or
involve unique or unknown risks”).
Footnote 8
The Court posits a hypothetical
in which APHIS deregulates RRA limited to a remote area in which
alfalfa is not grown, and issues an accompanying order “mandating
isolation distances so great as to eliminate any appreciable risk
of gene flow to the crops of conventional farmers who might someday
choose to plant in the surrounding area.” Ante, at 21. At
the outset, it is important to note the difference between a
plausible hypothetical and a piece of fiction. At least as of 2007,
APHIS had never granted partial approval of a petition for
nonregulated status. See n. 6, supra. And I doubt
that it would choose to deregulate genetically modified alfalfa in
a place where the growing conditions and sales networks for the
product are so poor that no farmer already plants it. Moreover, the
notion that this imagined deregulation would pose virtually no
environmental risk ignores one of the District Court’s critical
findings of fact: APHIS has very limited capacity to monitor its
own restrictions. The agency could place all manner of constraints
on its deregulation orders; they will have no effect unless they
are enforced.
Footnote 9
See Marsh v. Oregon
Natural Resources Council, 490
U. S. 360, 372 (1989).
Footnote
10
The Court states that the order
permitted both harvesting and planting. But the court’s final
judgment permitted only sale and harvesting of RRA planted
before March 30, 2007, more than a month before the
judgment. See App. to Pet. for Cert. 109a; see also id.,
at 79a.
Footnote
11
As explained previously, I do not
see the court’s broad injunction as “inconsistent,” ante,
at 20, with its decision that farmers who had already planted RRA
could harvest their crop. The equities are different for farmers
who relied on the agency than for companies like Monstanto that
developed an organism knowing it might be regulated; and APHIS
could monitor only a limited amount of RRA.
Footnote
12
The Court also hypothesizes a set of
growing conditions that would isolate RRA from the plaintiffs in
this case, even if not from other farmers. See ante, at
21–22. As already explained, these hypotheticals are rather
unrealistic. See n. 8, supra. And, given that the
plaintiffs include environmental organizations as well as farmer
and consumer associations, it is hard to see how APHIS could so
carefully isolate and protect their interests. In any event,
because APHIS concedes that it cannot monitor such limits, rules
that protect these or any other parties may be merely hortatory in
practice. Moreover, although we have not squarely addressed the
issue, in my view “[t]here is no general requirement that an
injunction affect only the parties in the suit.” Bresgal
v. Brock, 843 F. 2d 1163, 1169 (CA9 1987). To limit
an injunction against a federal agency to the named plaintiffs
“would only encourage numerous other” regulated entities “to file
additional lawsuits in this and other federal jurisdictions.”
Livestock Marketing Assn. v. United States Dept. of
Agriculture, 207 F. Supp. 2d 992, 1007 (SD 2002), aff’d,
335 F. 3d 711, 726 (CA8 2003).
Footnote
13
The majority notes that the
District Court acknowledged, at a hearing several months before it
issued the judgment, that a simple but slightly overinclusive
remedy may be preferable to an elaborate set of planting
conditions. See ante, at 22, n. 6. Quite right. As
the District Court said to APHIS’s lawyer at that hearing, if the
agency issues an elaborate set of precautions, “I don’t know how
you even start to enforce it.” App. to Pet. for Cert.
190a–191a.
Footnote
14
I suspect that if APHIS and
petitioners had come back to the court with more convincing
evidence prior to completing an EIS, and moved to modify the
court’s order, the court would have done so. Indeed, the District
Court showed a willingness to recalibrate its order when it amended
its judgment just a few months after the judgment’s issuance in
light of APHIS’s submission that certain requirements were
impractical. See App. to Pet. for Cert. 111a–114a.
Footnote
15
Accordingly, while “NEPA itself
does not mandate particular results,” it does mandate a particular
process and embodies the principle that federal agencies should
“carefully conside[r] detailed information” before incurring
potential environmental harm. Robertson, 490 U. S., at
350, 349.
Comments
Be the first to comment
Leave a Comment