Ninth Circuit Affirms APHIS’s Deregulation of Roundup Ready Alfalfa; Denies Plaintiffs’ Request for Rehearing En Banc

In May 2013, the Ninth Circuit in Center for Food Safety v. Vilsack, No. 12-15052 (9th Cir. May 17, 2013), affirmed a district court’s ruling that upheld the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service’s (“APHIS”) decision to deregulate Roundup Ready Alfalfa. On July 1, 2013, the plaintiff groups (“plaintiff-appellants”) filed a petition for rehearing en banc. The Ninth Circuit denied this petition on August 6, 2013. The Ninth Circuit’s opinion is significant because it made three important findings that could impact the review and regulation of genetically engineered organisms. These findings are:

The threats of cross-pollination, transgenic contamination, or increased herbicide use are not plant pest risks under the Plant Protection Act (“PPA”). Such harms fall outside the definition of “injury,” “damage,” or “disease.”
Once APHIS determined there was no plant pest risk, it no longer had jurisdiction to regulate Roundup Ready Alfalfa and, therefore, had no obligation to consult under the Endangered Species Act (“ESA”) or analyze alternatives under the National Environmental Policy Act (“NEPA”).
Unless specifically requested to do so, APHIS is not obligated to perform a noxious weed analysis in conjunction with a review of a petition for deregulation. There is a separate process to request listing of a plant as a noxious weed.

The Ninth Circuit’s decision is important for three main reasons. First, it provides a limiting interpretation of “plant pest” by narrowing the definition of the type of harm that would qualify as “injury,” “damage,” or “disease” to other plants under the PPA. This interpretation should help deregulation petitioners focus their petitions on physiological, toxicological and similar types of effects that the PPA was meant to address. Second, the decision affirms that an agency’s decision to deregulate a plant under the PPA is a nondiscretionary act, thereby limiting the agency’s obligations under the ESA and NEPA. This will lead to reduced uncertainty because once a GE plant or agricultural commodity is deregulated, biotech companies, seed producers, and growers can utilize the technology without the uncertainty that six years later an NGO (non-governmental organization) will sue under NEPA to invalidate the deregulation. Third, the court’s decision acknowledges that APHIS has no independent duty to analyze a plant as a noxious weed prior to making a deregulation determination.

However, the decision raises other issues and may simply transfer the regulatory responsibility for evaluating the impact of gene flow, herbicide resistance, or ESA consultation to the US Environmental Protection Agency in crop protection determinations such as herbicide re-registrations. Additionally, the impact of the Ninth Circuit’s decision on the manner in which APHIS reviews petitions for deregulation may not be apparent until the avenues for relief have been exhausted. The plaintiff-appellants sought a reconsideration of these issues by filing a petition requesting a rehearing en banc. The Ninth Circuit denied the petition on August 6, 2013. Each of the three panel judges, Judges Schroeder, Thomas, and Smith, voted to deny the petition, and no Ninth Circuit judge requested a vote on whether to hear the matter en banc. A petition for certiorari has not been filed with the Supreme Court, and plaintiff-appellants have not indicated whether they will make such a filing.