By WES SANDER
Litigants in a federal suit over genetically engineered sugar beets are scheduled to argue next week in San Francisco's federal court over whether, or how much, the crop should be restricted for the next few years.
Plaintiffs -- the Center for Food Safety, Organic Seed Alliance, Sierra Club and High Mowing Organic Seeds -- will argue for a total ban on the production or use of Monsanto's Roundup Ready beet seeds.
That argument is interpreted by the defendants -- USDA and its Agricultural Plant Health Inspection Service, backed in court by the industry -- as an effort to put an absolute halt to the crop, precluding even the chance of allowing planting or processing under limited circumstances until APHIS completes the environmental document that the court has said it needs in order to deregulate the seeds.
But plaintiffs, represented by the environmental law firm Earthjustice, say they're not seeking a ruling quite that broad. While their argument asks for a total halt of the crop, it approaches the case one legal argument at a time. In so doing, it serves a larger strategy that many observers see environmentalists pursuing through such cases: pulling the industry into a legal bog, hoping to discourage investment and slow development over the long haul.
If that's the plaintiffs' strategy here, it explains why their argument has contained no language seeking what the U.S. Supreme Court -- in a parallel case involving Monsanto's Roundup Ready alfalfa -- recently said it couldn't have anyway. It does not seek, as USDA says it does, a ruling wide enough to deprive APHIS of the option of pursuing an interim plan through a process called partial deregulation.
While APHIS says that route should be legally available, the agency would rather not take it. As a separate process, partial deregulation would require its own environmental approval -- which would allow it to supercede any ban that the judge might order next week -- and would likely invite its own legal challenge.
That's why APHIS and the industry would rather that federal Judge Jeffrey White allow GM beet production under the limited circumstances they've already suggested. White could make a decision after next week's hearing, giving the industry stronger footing for using Monsanto's seeds for the next few years, until APHIS completes its environmental work.
But if White were to grant the injunction plaintiffs want, APHIS's fallback position could involve partial deregulation. And that would offer enviros another legal battle to fight. Earthjustice could stay in court longer, helping to fatigue the industry by bottling up another deregulation attempt.
Plaintiffs seem on pace for success in this round, with White having said he expects to rule in their favor next week. But that doesn't mean they'll get the absolute ban they want; the judge will likely make allowances for crops already in the ground, a tack the Supreme Court supported in its alfalfa decision.
And that's where the industry's apparent strategy comes in. In considering the "extraordinary remedy" of an injunction, White is compelled to balance the interests of all sides, considering the potential to disrupt livelihoods.
This year, growers of GM sugar beets have largely maintained their production plans, despite White's September decision and the expectation that plaintiffs would subsequently have a good shot at an injunction.
As Earthjustice attorney Paul Atchitoff argues, the industry could have played it safe. Growers could have adjusted their plans in anticipation of what was to come. But crops that are already in the ground are likely to stay there, because the judge can't be too heavy-handed when the fight threatens to impact growers, who have only sought to make a living by producing a crop with what amount to the only seeds available.