Do NEPA violations cause irreparable harm?

By Anna Christensen
on Apr 27, 2010 at 8:24 am

Here, Stanford Law School’s Josh Patashnik previews this morning’s oral argument in 09-475, Monsanto Co. v. Geerston Seed Farms.  Check the Monsanto SCOTUSwiki page for additional updates.

Today in Monsanto Co. v. Geertson Seed Farms (No. 09-475), the Court will once again consider what injunctive relief a district court may order when it finds a procedural violation of a federal environmental statute.  Specifically, the case presents the question of what showing is required in a suit under the National Environmental Policy Act (NEPA) to satisfy the “likelihood of irreparable harm” prong of the Court’s four-part test – articulated most recently in Winter v. NRDC (2008) – for the issuance of a permanent injunction.

The case arises from the struggle over the regulatory status of Roundup Ready alfalfa (RRA), a crop genetically engineered by petitioner Monsanto Co. to tolerate glyphosate, the active ingredient in the herbicide Roundup.  The Plant Protection Act of 2000 (PPA) directs the Secretary of Agriculture (or his designee—in this case, the Animal and Plant Health Inspection Service (APHIS)) to promulgate regulations to prevent the “introduction of plant pests into the United States or the dissemination of plant pests within the United States.”  Pursuant to that authority, APHIS has issued regulations governing the introduction of genetically modified organisms that are believed to be plant pests.  If an organism is identified as such, a company or individual may petition APHIS for a determination that the organism does not present a plant pest risk and is thus not subject to the regulations.

In 2004, Monsanto filed a petition with APHIS, seeking a determination under the PPA that RRA was not subject to the regulations.  A decision by APHIS to approve the petition would trigger NEPA’s procedural requirements.  In 2005, as required by NEPA, APHIS prepared an Environmental Assessment (EA) for the petition.  In the EA, APHIS made a finding of no significant impact (FONSI), which allowed it to move forward without completing the full-fledged environmental impact statement (EIS) required by NEPA for all major federal actions significantly affecting the environment.  APHIS then granted Monsanto’s petition without conducting an EIS.

In February 2006, respondents Geertson Seed Farms (and others, including a bevy of environmental groups) filed suit against the Secretary of Agriculture and other federal officials.  They alleged, among other things, that APHIS had violated NEPA by failing to prepare an EIS for Monsanto’s petition.  The district court agreed, finding that the agency’s EA was inadequate.  The court then granted Monsanto’s motion to intervene and turned to the question of an appropriate remedy for the NEPA violation.  APHIS proposed to cure the violation by imposing restrictions on the planting and handling of RRA until an EIS could be completed.  However, the district court rejected this suggestion and instead ordered a permanent nationwide injunction against the planting of RRA.

APHIS and Monsanto appealed to the Ninth Circuit, arguing that the permanent injunction was overly broad.  The Ninth Circuit disagreed:  it held that Geertson had met the traditional four-part test for the issuance of a permanent injunction – including, most notably, the prong requiring the plaintiff to show a likelihood of irreparable harm in the absence of an injunction.

Monsanto filed a petition for certiorari in which it not only asserted a split between the Ninth and Second Circuits but also framed the case as a logical successor to the Court’s decision in Winter – that is, another case in which the Ninth Circuit had adopted an unduly lax standard for injunctions.  Indeed, Monsanto suggested, the Ninth Circuit was effectively attempting an end run around Winter in the NEPA setting by “effectively permit[ting] district courts once again to presume irreparable harm in NEPA cases” without requiring any significant individualized showing of such harm.  Such an approach, it argued, would “make broad injunctive relief all but automatic” in NEPA cases, a result incompatible with clear Court precedent (including Winter, eBay, Inc. v. MercExchange, L.L.C. (2006), and Amoco Production Co. v. Village of Gambell (1987)) that disavowed any presumptive entitlement to injunctive relief.  The Court granted cert. on January 15.

In its opening brief on the merits, Monsanto echoes the arguments made in its cert. petition.  First, it contends that the Ninth Circuit erred in establishing a presumption of irreparable harm whenever NEPA’s procedural mandates are violated.  It analogizes the case at hand to cases involving other environmental statutes (including the Clean Water Act and the Alaska National Interest Lands Conservation Act) in which the Court declined to create such a presumption.  Although, as Monsanto concedes, the Ninth Circuit expressly denied that it was establishing a presumption of irreparable harm, Monsanto argues that the Ninth Circuit’s approach effectively “amounts to the same thing.”  Particularly given the broad sweep of the injunctive relief ordered, which substantially exceeded what the Department of Agriculture had proposed in response to the district court’s finding of a NEPA violation, the scope of the injunction goes well beyond what is needed to cure the procedural defect.  And in any event, Monsanto concludes, the district court erred in not conducting an evidentiary hearing on the likelihood of irreparable harm.

In its brief on the merits in support of Monsanto, the federal government similarly argues that the Ninth Circuit erred in establishing a presumption of irreparable harm in NEPA cases.  It parts company from Monsanto, however, on the question of the evidentiary hearing:  although it contends that the Court does not need to reach the question whether an evidentiary hearing is always required before a finding of likelihood of irreparable harm is made because the injunction is overly broad, it argues in the alternative that district courts should have discretion to decide what kind of additional evidence is appropriate before deciding whether to award permanent injunctive relief in an Administrative Procedure Act case.

Geertson makes three primary arguments in response.  It first argues that Monsanto lacks standing to challenge the injunction because any harm that the company has suffered stems from the district court’s order (not challenged on appeal) vacating APHIS’s deregulation decision, rather than from the injunction itself.  Thus, Geertson contends, the distribution of RRA would be illegal even in the absence of an injunction.  Second, although neither the district court nor the Ninth Circuit in fact established a presumption of irreparable harm, Geertson has in any event satisfied the likelihood-of-irreparable-harm prong.  Third and finally, the Court should not require district courts to hold a formal trial-type hearing on the likelihood-of-success question, as district courts traditionally retain substantial leeway in determining how to conduct injunction hearings.