WASHINGTON (CN) – In its first case on genetically modified crops, the Supreme Court on Tuesday dissected a federal judge’s order barring biotech company Monsanto from selling herbicide-resistant alfalfa until the government looks at how the crop might affect organic varieties.
The justices’ questions centered on a 2007 order blocking Monsanto from selling its “Roundup Ready” alfalfa seeds, named for their resistance to the popular weed killer, until the U.S. Department of Agriculture completes its environmental review.
The order was requested by a group of organic farmers and environmentalists, led by Idaho-based Geertson Farm Seeds. They argued that a branch of the USDA violated federal law by deregulating Roundup Ready alfalfa without considering the environmental effects. Farmers feared the modified seeds would contaminate their crops, making it more difficult to export their alfalfa to Europe, Korea and Japan, which typically steer clear of genetically modified crops.
The 9th Circuit upheld the order against Monsanto, setting the stage for a Supreme Court battle that’s been closely watched by environmentalists and agribusiness.
Monsanto attorney Gregory Garre argued that the nationwide ban is too broad, and that the lower courts “short-circuited” the process for determining how deregulation could harm the plaintiffs. He said their case boiled down to a “psychological objection to genetically engineered alfalfa.”
Justice Samuel Alito suggested that Monsanto’s appeal might be moot, because the agency is on the cusp of issuing an environmental report.
Garre responded that the final analysis is still about a year away, and that the high court’s decision could affect a second federal ruling involving Roundup Ready sugar beets.
Government attorney Malcolm Stewart, arguing on Monsanto’s behalf, said the judge went too far in halting the sale and planting of Roundup Ready seeds while the government prepared its environmental review.
The justices spent some time trying to untangle the order vacating the deregulation decision and the parallel order barring anyone from planting, harvesting or selling genetically modified alfalfa until the final environmental report came out. The draft version, Justice Ruth Bader Ginsburg noted, recommends deregulation.
Chief Justice John Roberts seemed to favor sending the case back to the USDA. “The court is stepping into the shoes of the agency,” he said.
Attorney Lawrence Robbins, arguing for the farmers, attacked Monsanto’s standing to appeal. But Justice Antonin Scalia turned the tables. “What individual plaintiff here stood to be harmed by what the agency had done?”
Robbins replied that his clients’ crops could be cross-pollinated and contaminated.
“From what?” Scalia asked, his tone unsympathetic. “From somebody within five miles, 10 miles, 20 miles” of a modified alfalfa field? “This isn’t the contamination of the New York City water supply,” he said. “This is not the end of the world. It really isn’t.”
Justice Anthony Kennedy suggested that Monsanto could challenge the ban on the basis that it blocked the agency from allowing controlled planting, which is what the company ultimately wants.
But Ginsburg reiterated her point that genetically modified crops are on the track for deregulation, whether organic farmers want them or not. “People may have to get ready for a … different world,” Robbins agreed. He said deregulation will shut down the export market, speed up the consolidation of farming and “hasten the demise of organic farming.”
Alfalfa, used for livestock feed, is grown on about 22 million acres in the United States, according to Monsanto’s legal brief. Roundup Ready sugar beets produce about half the U.S. sugar crop.
Justice Stephen Breyer is not participating in the case because his brother, U.S. District Judge Charles Breyer in San Francisco, issued the initial injunction. Justice Clarence Thomas heard Tuesday’s arguments, despite speculation that he would recuse himself based on his having worked for Monsanto in the late 1970s.