Full injunction would be difficult to achieve, but possible
By WES SANDER
At least until a Dec. 4 court hearing, the sugar beet industry remains in the dark on whether it will be prohibited from using Roundup Ready seeds next year.
In September, federal Judge Jeffrey White ordered USDA's Animal and Plant Health Inspection Service to produce an environmental impact statement, or EIS, to support its deregulation of seed developer Monsanto's latest version of genetically engineered sugar beet seeds.
That means the agency's deregulation of the seeds is revoked until the environmental document is produced. Now the court will decide how the ruling will affect the industry, most of which uses Monsanto's seeds.
The suit was filed in January 2008 by the Center for Food Safety, Organic Seed Alliance, Sierra Club and High Mowing Organic Seeds. Plaintiffs' attorney Paul Atchitoff of Earthjustice said he will seek an injunction halting all production or use of Roundup Ready sugar beet seed while the EIS is being produced.
"We're going to be asking for a halt of any kind of production of (genetically modified) sugar beets, whether it's fruit, or seed, or anything," Atchitoff said.
At the Dec. 4 hearing, parties are expected to argue whether the court should allow an evidentiary hearing, one with witnesses, to decide on a remedy.
Witnesses would allow the industry to argue more forcefully that a full injunction would prove too great a burden, and that a moderated remedy allowing production to continue with restrictions would be appropriate.
Virtually no Roundup Ready sugar beets were grown in the United States three years ago. This year, about 95 percent of the crop was Roundup Ready.
"It's been by far the fastest adoption of biotech of any crop ever," said Luther Markwart, executive vice president of the American Sugarbeet Growers Association.
Atchitoff will argue against an evidentiary hearing.
Craig Raysor, an attorney with law firm Gillon & Associates in Memphis, Tenn., calls the case "the nightmare scenario" for the industry. Raysor, who represents agricultural clients, said White must grant a full injunction in order to maintain the integrity of his own decision.
"I'd say (the plaintiffs) have a good shot," Raysor said. "I seriously doubt if they'll let growers plant while they're doing this EIS. If the remedy is to have the bite of the judge's words, they have to go with an injunction that stops production."
But Drew Kershen, professor of agricultural law at the University of Oklahoma, offers reasons why the court might adopt a middle-ground remedy.
GM crops constitute most of the sugar beet market, Kershen said, making the potential impacts on the industry significant.
If White allows an evidentiary hearing on the remedy, then a middle-ground remedy is likely, he said. If he nixes witnesses, it's more likely an injunction will follow.
While courts often prefer a moderated remedy over the "extraordinary remedy" of an injunction, Kershen said, there's still no way to guess how the case will develop.
The nearest precedent is the Roundup Ready alfalfa suit, which was brought in the same court and resulted in a 2007 injunction barring all use of Monsanto's seeds. The judge's decision had been the same, requiring an EIS before APHIS could deregulate the seeds. The environmental document is still being produced, while the injunction was recently appealed to the U.S. Supreme Court.
He says there's some consensus among legal scholars that a full injunction will be difficult to get in the sugar beet case.
"But that doesn't mean it won't happen," he said.