On June 24, 2009 the Ninth Circuit Court of Appeals decided a case (Geertson Seed Farms v. Monsanto) where plaintiffs, a coalition of organic and conventional alfalfa growers and the Center for Food Safety, sued the United States Department of Agriculture's (USDA) Animal and Plant Health Inspection Service (APHIS), which had deregulated a genetically-engineered (GE) alfalfa plant developed by Monsanto Company before issuing an Environmental Impact Statement (EIS), as required by the Environmental Policy Act of 1969 (NEPA). Plaintiffs argued that use of the GE alfalfa would inadvertently transfer the altered genes to non-modified plants and threaten organic meat and dairy products (alfalfa is a key food for cows) and foreign and domestic markets would not accept products that were not guaranteed to be non-genetically engineered.
The Court of Appeals ordered that Monsanto was blocked from selling alfalfa seeds that were genetically altered to resist its "Roundup Ready" weed killer until APHIS prepared an EIS and that an evidentiary hearing was not required before issuance of the injunction against Monsanto. The court said that APHIS failed to take a "hard look" at whether and to what extent the unconditional deregulation of GE alfalfa would lead to genetic contamination of non-genetically engineered alfalfa.
On December 14, 2009, the USDA released its draft of the EIS and opened a public comment period, until March 3, 2010. APHIS stated in its EIS that it reviewed and conducted a plant pest risk assessment on the GE alfalfa and, in relevant part:
"Due to the lack of plant pest risk from the inserted genetic material, the lack of weediness characteristics of (GE) alfalfa..., the lack of atypical responses to disease or plant pests in the field, the lack of deleterious effects on non-targets or beneficial organisms in the agro-ecosystem, and the lack of horizontal gene transfer, APHIS concludes that ...(GE) alfalfa are unlikely to pose a plant pest risk."
The Center for Food Safety countered that the USDA did not consider the concerns of non-GE alfalfa farmers, organic dairies, or consumers and that the USDA plans to once again deregulate GE alfalfa (permit Monsanto to sell it) without any limitations or protections for farmers or the environment. According to the Center for Food Safety, the USDA has dismissed organic growers' argument that GE alfalfa transmission will occur through pollination and that such contamination will threaten organic and dairy products and export and domestic markets of organic farmers' alfalfa.
The alfalfa plant is one of the most widely grown crops in the U.S. According to the Center for Food Safety, alfalfa, the first perennial crop to be genetically engineered, is open-pollinated by bees, which can cross-pollinate at distances of several miles. The Center for Food Safety argues that the use of genetically-modified crops causes a dramatic increase in the use of herbicides and results in harms to the environment and human health.
On January 15, 2010, the Supreme Court agreed to hear Monsanto's appeal asking the High Court to overturn the court order preventing it from selling the GE alfalfa seeds on the basis that the lower court should not have ordered the ban without another evidentiary hearing. The Court of Appeals' decision in Geertson Seed Farms v. Monsanto, however, found that the lower court, the U.S. District Court for the Northern District of California, had held two hearings on whether to grant plaintiffs' request to block Monsanto from selling the GE alfalfa seeds and reviewed extensive documentary submissions from the parties to the lawsuit.
The Court of Appeals in Geertson Seed Farms v. Monsanto noted that none of the parties in the lawsuit disputed on appeal that the USDA had violated the NEPA. The question on Monsanto's appeal to the High Court, therefore, centers on whether the lower court should have held another evidentiary hearing before issuing the injunction against Monsanto's sale of GE alfalfa.
Environmental and food safety advocates cheer the attention that the use of genetically-engineered plants will get when the Supreme Court hears and decides the Monsanto appeal but worry that the USDA will short-circuit the appeals process by lifting the ban on Monsanto's sale of its GE alfalfa seeds before the Supreme Court decides the Monsanto appeal.