Supreme Court Takes NEPA GMO Case, Morocco Environmental Charter & FDA on BPA (by Bob Percival)

On Friday January 15 the U.S. Supreme Court announced that it will review a decision upholding an injunction that blocked sales of genetically altered alfalfa seed until an environmental impact statement (EIS) is prepared. The case, Monsanto Co. v. Geersten Seed Farms, No. 09-475 comes from the U.S. Court of Appeals for the Ninth Circuit, the Circuit whose decisions are most frequently reversed by the Supreme Court. The Ninth Circuit’s decision, Geersten Seed Farms v. Johanns, 570 F.3d 1130 (9th Cir. 2009), initially was issued in September 2008, just two months before the U.S. Supreme Court decided Winter v. NRDC. In WInter the Court reversed a Ninth Circuit decision upholding an injunction barring the U.S. Navy from testing a new sonar system pending completion of an EIS, finding insufficient evidence of harm to warrant the issuance of the injunction.

After Winter was decided, the Ninth Circuit amended its Geersten decision to distinguish it from Winter, stating that the district court had not presumed irreparable harm from sales of the genetically altered seed. In February 2007 the district court had blocked further sales of Monsanto’s “Roundup Ready Alfafa” (RRA) seed because it found that the U.S. Department of Agriculture (USDA) should have prepared an EIS to assess the danger that RRA would cross-pollinate with conventional and organic alfafa seed and harm the environment. Monsanto, which had intervened in the litigation against the USDA, sought Supreme Court review of the Ninth Circuit’s decision. Notably, the Solicitor General, representing USDA, opposed Supreme Court review. While agreeing with Monsanto that the district court had applied the wrong legal standard, the Solicitor General noted that the Ninth Circuit had correctly stated the post--Winter standard for issuing injunctions in NEPA cases (including the need to demonstrate likely, rather than simply possible, irreparable harm). Moreover, she argued that the injunction would expire soon because the EIS will be issued (the comment period on the draft EIS will expire on February 16, 2010).

Because the Court agreed to hear the case over the objections of the Solicitor General, it is likely that it will reverse the Ninth Circuit and perhaps instruct lower courts to hold more detailed evidentiary hearings focusing on the likelihood of harm before issuing NEPA injunctions. The government had not specifically requested an evidentiary hearing in this case.

On Thursday January 14, the government of Morocco unveiled its proposed National Charter for the Environment and Sustainable Development. Last summer King Mohammed VI established a national commission chaired by the Secretary General of the Department of Environment and directed it to develop such a charter. Beginning today the Moroccan government will hold a series of regional meetings to seek public input on the charter, which will be available online in four languages at: http://www.charteenvironnement.ma While the English translation of the charter has not appeared on the website yet, it is described there as an effort to make environmental protection a more important national priority and to increase the environmental awareness of Moroccan citizens. The charter reportedly provides for the creation of solid and liquid waste treatment facilities, and wastewater recycling and to require consideration of environment preservation in all development projects. It also reportedly directs that the “polluter pays” principle be implemented through regulations. The final version of the charter is expected to be adopted on April 22 to coincide with Earth Day celebrations.

On Friday January 15, the U.S. Food and Drug Administration (FDA) announced that the chemical bisphenol A (BPA), widely used as a hardening agent for plastics, may not be safe for use in products that come into contact with young children. The FDA endorsed a finding by the National Toxicology Program that BPA may pose “some concern” for children and infants because it has been linked to neurological and other harm. While the FDA does not believe that it has enough evidence to ban the use of BPA, many manufacturers have voluntarily discontinued its use, particularly after the government of Canada announced in 2007 that it was likely to ban BPA as a precautionary measure.