Center for Food Safety et al v. Vilsack et al

Filing 186

ORDER by Judge Samuel Conti granting 103 Motion for Summary Judgment; granting 104 Motion for Summary Judgment; denying 106 Motion for Summary Judgment; granting 157 Motion for Leave to File; denying 167 Motion to Strike ; denying 170 Motion to Strike (sclc1, COURT STAFF) (Filed on 1/5/2012)

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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 CENTER FOR FOOD SAFETY, et al., 8 Plaintiffs, 9 v. United States District Court For the Northern District of California 10 THOMAS J. VILSACK; GREGORY PARHAM, 11 12 Defendants. ) Case No. 11-1310-SC ) ) ORDER REGARDING CROSS) MOTIONS FOR SUMMARY JUDGMENT ) ) ) ) ) ) 13 14 I. INTRODUCTION 15 Plaintiffs Center for Food Safety, et al. ("Plaintiffs") bring 16 this action for violations of the National Environmental Policy Act 17 ("NEPA"), the Plant Protection Act ("PPA"), the Endangered Species 18 Act ("ESA"), and the Administrative Procedure Act ("APA") against 19 Defendant Thomas J. Vilsack, in his official capacity as Secretary 20 of the United States Department of Agriculture ("USDA"), and 21 Defendant Gregory Parham, in his official capacity as the 22 Administrator for the U.S. Department of Agriculture's Animal and 23 Plant Health Inspection Service ("APHIS") (collectively, 24 "Defendants").1 25 judgment filed by Defendants, Plaintiffs, and Intervenor Now before the Court are cross-motions for summary 26 27 28 1 Parham was substituted for Cindy Smith as a defendant on May 24, 2011. ECF No. 43 ("Not. of Substitution"). Parham took over for Smith as Administrator of APHIS, effective April 29, 2011. Id. 1 Defendants.2 2 MSJ"), 106 ("Pls.' MSJ"). 3 the Court held a hearing on December 9, 2011. 4 forth below, the Court GRANTS Defendants and Intervenor Defendants' 5 motions for summary judgment and DENIES Plaintiffs' motion for 6 summary judgment.4 ECF Nos. 103 ("Defs.' MSJ"), 104 ("Intervenor Defs.' These motions are fully briefed,3 and For the reasons set 7 8 II. BACKGROUND A. 9 Roundup Ready Alfalfa United States District Court For the Northern District of California 10 Plaintiffs challenge the decision of APHIS, an agency within 11 the USDA, to deregulate genetically engineered alfalfa lines J101 12 and J1063, also known as Roundup Ready Alfalfa ("RRA"). 13 the fourth most widely grown crop in the nation, and the third most 14 valuable. 15 It is a perennial crop typically grown three to six years or more 16 in succession. 17 alfalfa is often grown without using herbicides; less than 17 Alfalfa is Final Environmental Impact Statement ("FEIS") at 22-23.5 Id. at 22, 24. Because of its dense growth, 18 19 20 21 22 23 24 25 26 27 28 2 The Intervenor Defendants are Monsanto Company ("Monsanto"), Forage Genetics International, LLC ("Forage Genetics"), John Grover, Daniel Mederos, Dan Scheps, Carl Simmons, Mark Watte, California Alfalfa and Forage Association, Eureka Seeds, Gardena Alfalfa Seed Growers Association, and Midwest Forage Association. Intervenor Defs.' MSJ at 45. On July 18, 2011, the Court issued an order stating that Intervenor Defendants could share a joint brief, subject to the Court's local rules regarding page limitations. ECF No. 86. 3 See ECF Nos. 158 ("Defs.' Opp'n"), 161 ("Intervenor Defs.' Opp'n"), 168 ("Pls.' Opp'n"), 174 ("Defs.' Reply") 175 ("Intervenor Defs.' Reply"), 176 ("Pls.' Reply"). 4 The Court also GRANTS the American Farm Bureau and Biotechnology Industry Organization's motion for leave to file a brief amici curiae. See ECF No. 157 ("Amici Mot."). 5 The FEIS can be found at Administrative Record ("AR") 3 1201212275. 2 1 percent of conventional growers use any herbicides. 2 146; ECF No. 42 ("Defs.' Answer") ¶ 101. 3 Id. at 81, RRA is designed to withstand direct application of glyphosate, 4 the active ingredient in herbicide formulations manufactured and 5 sold by Monsanto by the commercial name Roundup. 6 36917-19; AR 1 1555. 7 form of alfalfa could spray glyphosate directly on or over crops to 8 remove weeds without harming the alfalfa plants. 9 Monsanto and Forage Genetics developed RRA to "increase alfalfa See 70 Fed. Reg. A farmer planting this genetically engineered See FEIS at 3-4. United States District Court For the Northern District of California 10 forage and seed purity through better control of most of the weeds 11 that impact forage and seed production;" "enable alfalfa production 12 on marginal lands with severe weed infestations;" and "provide 13 growers with a weed-control system that has a reduced risk profile 14 for the environment"; among other things. 15 Id. at 4. Plaintiffs argue that deregulation of RRA poses significant 16 risks to the environment. First, deregulation will increase the 17 use of glyphosate, which is toxic to various plant and animal 18 species. 19 conventional alfalfa with RRA may worsen the problem of glyphosate 20 resistant weeds. 21 is used year after year, weeds naturally resistant to glyphosate 22 survive, and may then reproduce and flourish. 23 Third, deregulation could result in increased gene flow from 24 genetically engineered crops to conventional, organic, and wild 25 plants. 26 such transgenic contamination could result in the loss of natural 27 varieties of alfalfa and hurt organic growers, whose customers See FEIS at vi; Pls.' MSJ at 5. Second, replacing See FEIS at 132; Pls.' MSJ at 6. See FEIS at 17; Pls.' MSJ at 6. 28 3 When glyphosate See FEIS at 131-35. Plaintiffs contend that 1 demand conventional and organic foods free of transgenic content. 2 Pls. MSJ at 7. 3 B. Initial Deregulation Determination 4 The PPA gives the Secretary of the USDA the authority to adopt 5 regulations preventing the introduction and dissemination of plant 6 pests. 7 through APHIS, regulates "organisms and products altered or 8 produced through genetic engineering that are plant pests or are 9 believed to be plant pests." 7 U.S.C. § 7711(a). Pursuant to this authority, the USDA, 7 C.F.R. § 340.0(a)(2) n.1. United States District Court For the Northern District of California 10 products and organisms are known as "regulated articles." 11 Such See id. § 340.0. 12 APHIS originally considered RRA to be a regulated article. 13 See 70 Fed. Reg. 36917-36918. 14 person to introduce RRA without first obtaining permission from 15 APHIS. 16 APHIS a request for determination of nonregulated status for RRA 17 pursuant to 7 C.F.R. § 340.6. 18 considering hundreds of public comments and preparing an 19 Environmental Assessment, APHIS issued a Finding of No Significant 20 Impact and decided to deregulate RRA unconditionally, without 21 preparing an Environmental Impact Statement ("EIS"). 22 36917-36918. 23 Accordingly, it was unlawful for any In April 2004, Monsanto and Forage Genetics submitted to AR 1 1553-1958. In 2005, after 70 Fed. Reg. Approximately eight months later, various plaintiffs, 24 including a number of the plaintiffs in the instant action, filed 25 suit in this district to challenge APHIS's Environmental 26 Assessment, Finding of No Significant Impact, and its decision to 27 deregulate RRA. Geertson Seed Farms v. Johanns, No. 06-01075 CRB 28 ("Alfalfa I"). The court granted summary judgment in favor of the 4 1 plaintiffs, finding that APHIS had violated NEPA because its 2 Environmental Assessment was inadequate and its Finding of No 3 Significant Impact was arbitrary and capricious. 4 U.S. Dist. LEXIS 14533, *37-38 (N.D. Cal. Feb. 13, 2007). 5 Court found that APHIS's Environmental Assessment failed to answer 6 "substantial questions" concerning the impacts of deregulation, 7 including "whether [] the deregulation of RRA would lead to the 8 transmission of the engineered gene to organic and conventional 9 alfalfa" and "the possible extent of such transmission"; "farmers' Alfalfa I, 2007 The United States District Court For the Northern District of California 10 ability to protect their crops from the genetically engineered 11 gene"; and "the extent to which RRA will contribute to the 12 development of Roundup-resistant weeds." 13 orders, the court (1) vacated APHIS's deregulation of RRA; (2) 14 ordered APHIS to prepare an EIS before it made any decision on 15 Monsanto's deregulation petition; and (3) enjoined the planting of 16 any RRA in the United States after March 30, 2007.6 17 2007 U.S. Dist. LEXIS 21491, at *8-9 (N.D. Cal. Mar. 12, 2007); 18 Alfalfa I, 2007 U.S. Dist. LEXIS 32701, at *29 (N.D. Cal. May 3, 19 2007). Id. Through subsequent Alfalfa I, APHIS, Monsanto, and Forage Genetics appealed the Alfalfa I 20 21 remedy. The Ninth Circuit affirmed the decision of the district 22 court, but the Supreme Court reversed and remanded. 23 v. Geertson Seed Farms, 130 S. Ct. 2743, 2761-62 (2010). 24 Supreme Court held that the district court "abused its discretion 25 in enjoining APHIS from effecting a partial deregulation [pending Monsanto Co. The 26 27 28 6 The Court also allowed those who had already purchased RRA to plant their seeds until March 30, 2007, and imposed certain conditions on the handling of already planted RRA. Alfalfa I, 2007 U.S. Dist. LEXIS 32701, at *30; Alfalfa I, 2007 U.S. Dist. LEXIS 48383, at *6-12. 5 1 APHIS's preparation of an EIS] and in prohibiting the possibility 2 of planting in accordance with the terms of such a deregulation." 3 Id. at 2761. 4 court's vacatur of APHIS's deregulation decision. 5 Subsequently, Forage Genetics petitioned APHIS for such a partial 6 deregulation while APHIS completed its EIS. However, the Supreme Court left in place the district Id. at 2756. AR 3 4361. 7 C. 8 In December 2009, APHIS published a draft EIS ("DEIS") 9 Current Deregulation Determination concerning the deregulation of RRA. The DEIS analyzed only two United States District Court For the Northern District of California 10 alternatives: (1) "no action," i.e., the regulated status of RRA 11 would remain unchanged; and (2) full deregulation. 12 13640-15115) at 11-14. 13 options, such as imposing isolation distances and geographic 14 restrictions to restrict transgenic contamination, because APHIS 15 concluded that it lacked the regulatory authority to enforce such 16 options. 17 no jurisdiction to regulate RRA once it determined that RRA did not 18 pose a plant pest risk. 19 period, APHIS received approximately 244,000 public comments on the 20 DEIS. 21 DEIS (AR 2 The DEIS dismissed partial deregulation Id. at 14-15. Specifically, APHIS concluded that it had See id. at 14. During the 75-day comment FEIS at 9. In December 2010, APHIS released its final EIS ("FEIS"), which See FEIS at 13. Under 22 included a new, "co-preferred" alternative. 23 the new alternative, APHIS would partially deregulate RRA through a 24 combination of isolation distances and geographic restrictions 25 intended to reduce the risks of transgenic contamination. 26 this alternative, a marketer of RRA would ensure that end users 27 implemented the required management practices through contracts, 28 licenses, or other means. Id. 6 Id. In In January 2011, APHIS issued a Record of Decision ("ROD"), 1 restriction or oversight. 4 that the full deregulation alternative was consistent with the 5 regulatory requirements in 7 C.F.R. part 340 and that RRA "do[es] 6 not pose a greater plant pest risk than other conventional alfalfa 7 varieties." 8 could lead to transgenic contamination through the transfer of 9 pollen or seed mixing, increased use of glyphosate, and the 10 United States District Court fully deregulating RRA and allowing it to be grown without any 3 For the Northern District of California 2 evolution and proliferation of glyphosate-resistant weeds. 11 8-10. 12 "environmentally preferred alternative," but decided against 13 adopting it because "it d[id] not meet the agency's purpose and 14 need . . . to make a decision that is consistent with its existing 15 statutory authority and regulatory program" and because "APHIS has 16 not identified any plant pest risks associated with [RRA]." 17 15. 18 because it had not identified any plant pest risks associated with 19 RRA and, accordingly, "the restrictions in [the partial 20 deregulation alternative] are not consistent with APHIS' regulatory 21 authorities." 22 D. 23 Plaintiffs filed the instant action in federal court on March 24 18, 2011 and filed their First Amended Complaint ("FAC") one month 25 later. 26 claims against Defendants. 27 claims are for violations of NEPA and the APA, the fourth is for Id. at 5. ROD (AR 4 988-1004) at 1. APHIS stated APHIS acknowledged that full deregulation Id. at APHIS identified the no action alternative as the Id. at APHIS explained that it decided against partial deregulation ROD at 14. Plaintiffs' Lawsuit ECF Nos. 1 ("Compl."); 13 ("FAC"). The FAC asserts five See FAC ¶¶ 176-221. 28 7 The first three 1 violations of the PPA and the APA, and the fifth is for violation 2 of the ESA. 3 Id. Plaintiffs' three NEPA claims assert, respectively, that (1) 4 APHIS failed to adequately consider the various environmental 5 consequences of its deregulation determination, (2) APHIS's NEPA 6 process was procedurally flawed and predetermined, and (3) a 7 supplemental EIS is required. 8 Plaintiffs contend that the FEIS is flawed because it failed to 9 take a hard look at the environmental effects of deregulation on Id. ¶¶ 176-201. Specifically, United States District Court For the Northern District of California 10 transgenic contamination, conventional and organic growers, 11 glyphosate resistant weeds, the overall use of glyphosate, and the 12 availability of conventional alfalfa seed varieties (i.e., seed 13 concentration), among other things. 14 also allege that APHIS improperly: limited its assessment to its 15 regulatory authority rather than its statutory authority; failed to 16 acknowledge its mandate to minimize noxious weed impacts; 17 predicated its scope and conclusions on its separate, previously 18 decided PPA "plant pest risk determination"; rejected the partial 19 deregulation alternative based on the erroneous conclusion that 20 APHIS does not have the authority to implement isolation distances 21 and geographic limitations; failed to account for the direct and 22 indirect impacts of increased glyphosate use; and relied on future 23 agency actions to mitigate the impacts of transgenic contamination. 24 See id. ¶¶ 189-198. 25 reliance on new agency policies concerning the coexistence of RRA 26 and conventional alfalfa requires a supplemental EIS to study the 27 efficacy of any such measures. FAC ¶¶ 178-88. Plaintiffs Finally, Plaintiffs allege that APHIS's FAC ¶¶ 199-201. 28 8 Plaintiffs' fourth claim for violations of the PPA and APA 1 2 assert that APHIS's deregulation determination was arbitrary and 3 capricious and not based on sound science. 4 APHIS violated the PPA by failing to adequately consider: the 5 effects of the glyphosate use that will result from deregulation; 6 noxious weed risks; and transgenic contamination. 7 Plaintiff also challenges as arbitrary and capricious APHIS's 8 conclusions that partial deregulation of RRA was inconsistent with 9 APHIS's authority and mission, that RRA will not harm organic Plaintiffs allege that Id. at 205-207. United States District Court For the Northern District of California 10 growers or various species beneficial to agriculture, and that RRA 11 will not create a noxious weed risk. Id. ¶¶ 208-211. Finally, Plaintiffs' fifth claim for violation of the ESA 12 13 asserts that APHIS failed to insure, in consultation with the 14 United States Fish and Wildlife Service ("FWS"), that deregulation 15 of RRA would not harm protected species or critical habitat. 16 215. Id. ¶ 17 18 III. LEGAL STANDARD 19 Entry of summary judgment is proper "if the movant shows that 20 there is no genuine dispute as to any material fact and the movant 21 is entitled to judgment as a matter of law." 22 56(a). 23 require a directed verdict for the moving party. 24 Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). 25 mandates the entry of summary judgment . . . against a party who 26 fails to make a showing sufficient to establish the existence of an 27 element essential to that party's case, and on which that party 28 will bear the burden of proof at trial." Fed. R. Civ. P. Summary judgment should be granted if the evidence would 9 Anderson v. Thus, "Rule 56[] Celotex Corp. v. Catrett, 1 477 U.S. 317, 322 (1986). 2 believed, and all justifiable inferences are to be drawn in his 3 favor." 4 of a scintilla of evidence in support of the plaintiff's position 5 will be insufficient; there must be evidence on which the jury 6 could reasonably find for the plaintiff." 7 "The evidence of the nonmovant is to be Anderson, 477 U.S. at 255. However, "[t]he mere existence Id. at 252. When the court reviews a government agency's final action, the 8 Rule 56 standard for summary judgment is amplified by 5 U.S.C. § 9 706(2) of the Administrative Procedure Act. Title 5 U.S.C. § 706 United States District Court For the Northern District of California 10 provides the applicable standard of review for agency action. 11 Under § 706, "the reviewing court shall decide all relevant 12 questions of law, interpret constitutional and statutory 13 provisions, and determine the meaning or applicability of the terms 14 of an agency action." 15 set aside agency action found to be "arbitrary, capricious, an 16 abuse of discretion, or otherwise not in accordance with law" or 17 "in excess of statutory jurisdiction, authority, or limitations, or 18 short of statutory right[.]" Under § 706(2), the reviewing court shall 19 "In making the foregoing determinations, the court shall 20 review the whole record or those parts of it cited by a party, and 21 due account shall be taken of the rule of prejudicial error." 22 U.S.C. § 706. 23 agency action requires the court to review the administrative 24 record to determine whether the agency's action was "arbitrary and 25 capricious, an abuse of discretion, not in accordance with law, or 26 unsupported by substantial evidence on the record taken as a 27 whole." 5 Summary judgment in a case of judicial review of Environment Now! v. ESPY, 877 F. Supp. 1397, 1421 (E.D. 28 10 1 Cal. 1994) (citing Good Samaritan Hospital, Corvallis v. Mathews, 2 609 F.2d 949, 951 (9th Cir. 1979)). "The court is not empowered to substitute its judgment for 3 4 that of the agency." Citizens to Preserve Overton Park, Inc. v. 5 Volpe, 401 U.S. 402, 416 (1971), overruled on other grounds by 6 Califano v. Sanders, 430 U.S. 99, 105 (1977). 7 recognizes a narrow scope of review applicable to agency action: 8 "Assuming that statutory procedures meet constitutional 9 requirements, the court is limited to a determination of whether The Ninth Circuit United States District Court For the Northern District of California 10 the agency substantially complied with its statutory and regulatory 11 procedures, whether its factual determinations were supported by 12 substantial evidence, and whether its action was arbitrary, 13 capricious or an abuse of discretion." 14 1332, 1334 (9th Cir. 1970), cert denied, 400 U.S. 1022 (1971). 15 Despite this narrow scope of review, the court is still expected to 16 make a "thorough, probing, in-depth review" of the administrative 17 record to ensure the validity of the agency action and "must 18 consider whether the decision was based on a consideration of the 19 relevant factors and whether there has been a clear error of 20 judgment." Toohey v. Nitze, 429 F.2d Overton Park, 401 U.S. at 415-16. 21 22 IV. DISCUSSION 23 A. 24 Congress enacted the PPA in 2000 to replace the former Plant Plant Protection Act ("PPA") 25 Quarantine Act, the Federal Plant Pest Act, and the Federal Noxious 26 Weed Act. 27 U.S.C. § 7701 et seq.) 28 certain actions "necessary to prevent . . . the dissemination of a See Pub. L. No. 106-224, 114 Stat. 438 (codified at 42 The PPA provides that APHIS may take 11 1 plant pest or noxious weed within the United States." 2 7712(a). 3 based on sound science." 4 APHIS's implementing regulations concerning transgenic plants, 7 5 C.F.R. Part 340, were promulgated pursuant to its previous, 6 narrower Federal Plant Pest Act authority and therefore reference 7 only plant pest harms, and not noxious weed harms. 8 Reg. 22,908; 58 Fed. Reg. 17,044; 62 Fed. Reg. 23,945. 9 7 U.S.C. § Congress mandated that all of APHIS's decisions "shall be Id. §§ 7701(4), 7711(b), 7712(b). See 52 Fed. Plaintiffs assert that APHIS violated the PPA because (1) United States District Court For the Northern District of California 10 APHIS failed to consider the noxious weed harms of deregulation; 11 (2) APHIS's conclusion that it could not partially deregulate RRA 12 was arbitrary and capricious; and (3) APHIS's plant pest 13 determination was not based on sound science. 14 31 30; Pls.' Opp'n at 20-31; FAC ¶¶ 202-12. 15 discussed below, the Court finds that the plant pest risk 16 assessment made in connection with RRA was consistent with the PPA. 17 Accordingly, the Court GRANTS Defendants and Intervenor Defendants' 18 motions for summary judgment with respect to Plaintiffs' PPA claim. 19 1. See Pls.' MSJ at 36- For the reasons Noxious Weed Risk 20 Plaintiffs first argue that "APHIS completely failed to 21 undertake its statutorily mandated obligation to investigate 22 whether RRA poses noxious weed risks." 23 Plaintiffs argue that, under the PPA's expansive noxious weed 24 mandate, APHIS was required, to the extent practicable, to limit 25 the resulting noxious weed impacts of deregulating RRA. 26 Yet, "APHIS nowhere applied or even acknowledged its noxious weed 27 authority in approving RRA." 28 C.F.R. Part 340, the regulation under which APHIS exercised its Pls.' MSJ at 25. Id. at 29. 12 Id. at 28. Plaintiffs concede that 7 1 authority to deregulate RRA, does not require an analysis of 2 noxious weed effects. 3 proposed amendments to Part 340 - which would incorporate noxious 4 weed effects - have not been finalized. 5 argue that APHIS was still required to analyze noxious weed effects 6 pursuant to its express statutory mandate. 7 RRA poses the types of noxious weed risks encompassed by the 8 statute since it may foster the development of glyphosate resistant 9 weeds and threaten organic growers through transgenic United States District Court For the Northern District of California 10 contamination. Id. Plaintiffs also concede that the Id. However, Plaintiffs Id. Plaintiffs contend Id. at 28. 11 Defendants respond that Plaintiffs' noxious weeds argument is 12 premised on a misunderstanding of the PPA's existing statutory and 13 regulatory structure. 14 in enacting the PPA, Congress maintained the distinction between 15 the regulation of plant pests and noxious weeds and that APHIS's 16 regulations reflect that distinction. 17 Defendants acknowledge that APHIS has issued a proposed rule that 18 would amend the regulations so as to incorporate noxious weed 19 effects into decisions on petitions to deregulate genetically 20 engineered plants. 21 that APHIS is bound to act in accordance with its current rules and 22 regulations until they have been formally amended. 23 Defendants argue that Plaintiffs' noxious weed argument is barred 24 by their failure to exhaust administrative remedies as they have 25 failed to petition APHIS to add RRA to the regulatory list of 26 noxious weeds. 27 further argue that Plaintiffs cannot show that RRA is a noxious 28 weed. Defs.' Opp'n at 2. Defs.' Opp'n at 3. Defendants argue that, Defs.' MSJ at 18. However, Defendants insist Intervenor Defs.' MSJ at 44. Id. at 43. 13 Id. Intervenor Intervenor Defendants In enacting the PPA, Congress provided distinct mechanisms for 1 codified Act prohibits the "unauthorized movement of plant pests" 4 absent regulatory permission, while section 7712(f)(1) provides 5 that "the Secretary may publish, by regulation, a list of noxious 6 weeds that are prohibited or restricted from entering the United 7 States or that are subject to restrictions on interstate 8 movement[.]" 9 its statutory authority over plant pests and noxious weeds pursuant 10 United States District Court regulating plant pests and noxious weeds. 3 For the Northern District of California 2 Section 7711(a) of the to two distinct regulations -- 7 C.F.R. Part 340 relates to plants 11 pests and 7 C.F.R. Part 360 relates to noxious weeds. 12 reasonable interpretation of its statutory mandate is entitled to 13 deference.7 14 Council, Inc., 467 U.S. 837, 865 (1984). In accordance with this framework, APHIS exercises APHIS's See Chevron, U.S.A., Inc. v. Natural Res. Def. In light of the prevailing statutory and regulatory framework, 15 16 the Court agrees with Defendants. Prior to the decision challenged 17 by Plaintiffs, RRA was a regulated article under the plant pest 18 regulations in 7 C.F.R. Part 340. 19 petition for nonregulated status brought under 7 C.F.R. § 340.6, 20 see AR 1 1553, and it acted accordingly. 21 deregulate RRA was based on its determination that RRA did not pose 22 a plant pest risk and there is no indication that the agency 23 strayed from the current regulations in Part 340 in reaching that APHIS was then presented with a APHIS's decision to 24 25 26 27 28 7 Plaintiffs argue that APHIS's attempt to "ignore the PPA's noxious weed mandates" is not entitled to deference since it is merely a "convenient litigation position." See Pls.' Opp'n at 23. This argument is unpersuasive. First, as evidenced by 7 C.F.R. Part 360, the agency has not ignored its noxious weed mandate. Second, the distinct regulatory frameworks for noxious weed and plant pest risks were developed, through notice and comment rulemaking, long before the inception of the instant litigation. 14 1 determination. 2 included on the regulatory list of noxious weeds promulgated 3 pursuant to Part 360. 4 petitioned APHIS to include RRA on this list.8 5 Court finds that APHIS was under no obligation to assess whether 6 RRA posed a noxious weed risk when it made its deregulation 7 determination. 2. 8 Plaintiffs do not dispute that RRA has never been Nor do Plaintiffs dispute that they have not Accordingly, the Plant Pest Risk Plaintiffs next argue that APHIS's determination that RRA does 9 United States District Court For the Northern District of California 10 not pose a plant pest risk was arbitrary and capricious and not 11 based on sound science. 12 specifically point to four instances in which APHIS allegedly 13 ignored record evidence in reaching its plant pest risk 14 determination. Pls.' Opp'n at 25-32. Plaintiffs See id. First, Plaintiffs argue that APHIS improperly ignored evidence 15 16 that RRA deregulation will harm "raw or processed commodities" 17 through transgenic contamination, i.e., cross-pollination with 18 organic and conventional alfalfa. 19 Nothing in the PPA indicates that APHIS must account for the 20 effects of cross-pollination on other commercial crops in 21 conducting its plant pest risk assessment. 22 pest as a "protozoan," "nonhuman animal," "parasitic plant," 23 8 24 25 26 27 28 Id. at 25. The Court disagrees. The PPA defines a plant Plaintiffs contend they should not be required to file such a petition since "APHIS cannot outsource the agency's statutory duties to Plaintiffs." Pls.' Opp'n at 24. This argument is unavailing. Plaintiffs cite no authority which would have required APHIS to take up the issue of noxious weed risks in response to a petition brought under 7 C.F.R. Part 340. Notably, the statutory language on which Plaintiffs rely is permissive. See 7 U.S.C. 7712(a) ("The Secretary may prohibit or restrict the importation . . . of any . . . noxious weed" (emphasis added)); id. § 7712(f)(1) ("the Secretary may publish, by regulation, a list of noxious weeds that are prohibited" (emphasis added)). 15 1 "bacterium," "fungus," "virus or viroid," or "infectious agent or 2 other pathogen." 3 pests because they might cross-pollinate with commercial crops. 4 Thus, there is no reason to believe that Congress intended for 5 APHIS to regulate commercial crops as plant pests because they pose 6 a risk of transgenic contamination. 7 plant pests is consistent with this interpretation. 8 340.2. 9 impacts on conventional and organic alfalfa growers. 7 U.S.C. § 7702(14). None of these organisms are APHIS's regulatory list of See 7 C.F.R. § Additionally, APHIS did not ignore the potential economic These issues See FEIS at 38-70. United States District Court For the Northern District of California 10 were considered in the agency's NEPA analysis. 11 Accordingly, the Court finds that APHIS's plant pest risk 12 determination did not improperly ignore the risk of transgenic 13 contamination. 14 Second, Plaintiffs contend that APHIS failed to consider the 15 effect of deregulation on the development on glyphosate resistant 16 weeds. 17 will result in increased use of herbicides by farmers which, in 18 turn, will enable herbicide resistant weeds to flourish. 19 Defendants respond that Plaintiffs misinterpret the scope of 20 APHIS's plant pest risk assessment by focusing on the consequences 21 of the use of pesticide by third parties rather than the plant pest 22 risk directly posed by RRA. 23 agrees with Defendants and finds that APHIS's interpretation of its 24 plant pest mandate is consistent with the PPA and its implementing 25 regulations. 26 assessment was to determine whether RRA itself posed a plant pest 27 risk because of its genetic modifications. 28 (defining plant pest as "any living stage" or an enumerated list of See Pls.' Opp'n at 28. Plaintiffs argue that deregulation See Defs.' Opp'n at 10. See id. The Court APHIS's task in performing its plant pest risk 16 See 7 U.S.C. § 7702(14) 1 organisms "that can directly or indirectly injure, cause damage to, 2 or cause disease in any plant or plant product.") 3 PPA suggests that APHIS was required to consider the effects of 4 increased herbicide use or the development of herbicide resistant 5 weeds in making this assessment. 6 pest regulations require such an analysis. 7 See id. Nothing in the Nor do APHIS's plant See 7 C.F.R. Part 340. Third, Plaintiffs argue that APHIS improperly ignored evidence 8 that deregulation will increase the risk of plant disease. 9 Opp'n at 31. Pls.' APHIS had concluded that RRA, "whether sprayed with United States District Court For the Northern District of California 10 glyphosate or not, w[as] found to be similarly affected by typical 11 plant diseases found in alfalfa, and do[es] not harbor an altered 12 pest or pathogen community compared to other alfalfa varieties." 13 AR 3 11816-17. 14 by improperly relying on Monsanto's "anecdotal, unscientific 15 'observations,'" and ignored other studies reaching contrary 16 conclusions. 17 administrative record shows that glyphosate treated Roundup Ready 18 crops harbor elevated levels of soil pathogens in their root 19 tissues and that such pathogens increase the severity of crop 20 disease. 21 discussed above, the PPA requires APHIS to consider the plant pest 22 risks posed by a regulated article -- in this case, RRA -- not 23 herbicides which may be used in conjunction with that regulated 24 article. 25 of studies not addressed by Plaintiffs; these found no direct 26 evidence that glyphosate use is linked to the development of plant 27 disease. 28 discretion to agencies on matters 'requir[ing] a high level of Id. Plaintiffs argue that APHIS reached this conclusion Pls.' Opp'n at 32. Plaintiffs contend that the Plaintiffs' argument is unpersuasive since, as Further, in its NEPA analysis, APHIS considered a number See, e.g., AR 3 11360-61. 17 Courts "grant considerable 1 technical expertise.'" 2 658 (9th Cir. 2009) (quoting Marsh v. Or. Natural Res. Council, 490 3 U.S. 360, 377 (1989)). 4 scientific analyses." 5 conflicting studies in the administrative record, the Court cannot 6 conclude that APHIS's conclusions concerning plant disease lacked a 7 basis in sound science. "[I]t is not our role to weigh competing Id. at 659. Accordingly, based on the Fourth, Plaintiffs contend APHIS ignored evidence that RRA 8 9 Ecology Ctr. v. Castaneda, 574 F.3d 652, deregulation will increase the "weediness" of feral alfalfa. Pls.' United States District Court For the Northern District of California 10 Opp'n at 26-28. Specifically, Plaintiffs argue that RRA will 11 cross-pollinate with feral alfalfa and that the resulting feral RRA 12 will become a problem weed which farmers will be unable to 13 eradicate through the application of glyphosate. 14 Plaintiffs' argument fails for several reasons. 15 administrative record shows that APHIS's plant pest risk assessment 16 addressed the potential weed risks posed by RRA. 17 15. 18 field trials and growth experiments, the agency concluded that "no 19 unusual characteristics were noted that would suggest increased 20 weediness of [RRA] plant populations." 21 Plaintiffs' argument ignores the fact that APHIS considered and 22 discussed alternative methods to control RRA in feral stands, 23 including the application of non-glyphosate herbicides. 24 11808. 25 Congress intended APHIS to regulate genetically engineered crops as 26 plant pests based on their potential to interbreed with other 27 crops. Id. at 27. First, the See AR 3 11807- After considering a number of technical studies involving AR 3 11815. Second, See AR 3 Third, as discussed above, there is no indication that 28 18 1 For these reasons, the Court cannot conclude that APHIS's 2 plant pest risk assessment was arbitrary and capricious or lacked a 3 basis in sound science. 4 3. Partial Deregulation Plaintiffs also challenge as arbitrary and capricious APHIS's 5 6 conclusion that it could not partially regulate RRA under the PPA 7 once it determined that RRA was not a plant pest. 8 30. 9 alternative because it was "not consistent with APHIS's regulatory See Pls.' MSJ at In the ROD, APHIS had rejected the partial deregulation United States District Court For the Northern District of California 10 authorities." 11 decision was based on the false assumption that its authority was 12 so limited that it had to ignore the impacts of glyphosate 13 resistant weeds and transgenic contamination. 14 Plaintiffs further argue that APHIS's contention that it could not 15 partially deregulate RRA is inconsistent with its own prior 16 positions as well as judicial precedent. 17 ROD at 14. Plaintiffs argue that APHIS's final See Pls.' MSJ at 31. See id. at 33. Defendants do not dispute that APHIS's decision against 18 partial deregulation was predicated on its finding that RRA did not 19 pose a plant pest risk. 20 APHIS may regulate a genetically engineered plant in part. 21 Opp'n at 5. 22 must be based on either (1) an acknowledged plant pest risk or (2) 23 the continued presumption of such a risk in the absence of APHIS's 24 scientific finding to the contrary. 25 that, in the instant action, neither element is present since APHIS 26 determined that RRA did not present a plant pest risk. 27 28 Defendants also agree that, under the PPA, Defs. However, Defendants contend that partial regulation Id. at 7. The Court agrees with Defendants. Defendants submit Id. APHIS's conclusion that it could not continue to regulate RRA once it determined that the crop 19 1 did not pose a plant pest risk is entitled to deference as it is 2 consistent with the current statutory and regulatory framework. 3 See Chevron, 467 U.S. at 865. 4 regulations, APHIS's authority to regulate organisms such as RRA is 5 predicated upon the existence of a plant pest risk. 6 provides, in relevant part, that APHIS may regulate any plant or 7 plant product if it determines that regulation is necessary to 8 prevent the dissemination of a plant pest. 9 APHIS's regulations also define a "regulated article" according to Under both the PPA and agency See 7 C.F.R. § 340.1. The PPA See 7 U.S.C. § 7712. As explained in section United States District Court For the Northern District of California 10 plant pest risk. 11 IV.A.2 supra, the Court declines to second-guess APHIS's 12 determination that RRA does not pose a plant pest risk. 13 The Court also rejects Plaintiffs' contention that APHIS's 14 deregulation decision is somehow inconsistent with the agency's 15 prior determinations. 16 partially deregulate Roundup Ready sugar beets. 17 determination was made in response to a request for partial 18 deregulation, not full deregulation, and APHIS's assessment of the 19 request did not reach the issue of whether the crops would pose a 20 plant pest risk if they were fully deregulated. 21 Interim PPRA at 1.9 22 are challenging APHIS's final determination that RRA does not pose 23 a plant pest risk. Plaintiffs point to APHIS's decision to But that See Sugar Beets In contrast, in the instant action, Plaintiffs The judicial precedent relied on by Plaintiffs is also 24 25 inapposite. In Monsanto, the Supreme Court addressed the different 26 regulatory alternatives available to APHIS pending or following the 27 28 9 Available at p_ppra.pdf. 20 1 completion of an EIS, including partial deregulation. See 130 S. 2 Ct. at 2759. 3 the possibility of including a partial deregulation alternative in 4 APHIS's EIS, stating that "further collection of data can inform 5 APHIS as to the likely extent of any gene transmission and the 6 realistic measures, if any, that may be taken to prevent or at 7 least reduce such contamination." 8 *18. 9 to partially regulate RRA under the PPA. Similarly, the district court in Alfalfa I discussed 2007 U.S. Dist. LEXIS 14533, at However, neither court directly addressed APHIS's authority Nor did either court United States District Court For the Northern District of California 10 suggest that APHIS could continue to regulate RRA after the agency 11 had determined that the crop did not pose a plant pest risk. 12 For these reasons, the Court finds that APHIS's RRA 13 deregulation determination did not violate the PPA. 14 B. 15 Section 7(a)(2) of the ESA requires each federal agency to Endangered Species Act ("ESA") 16 "insure that any action, authorized, funded, or carried out by 17 [the] agency . . . is not likely to jeopardize the continued 18 existence of any endangered species or threatened species or result 19 in the destruction or adverse modification of habitat of such 20 species[.]" 21 requires an action agency to consult with FWS if it finds that a 22 federal action may affect a listed species or critical habitat. 23 Id. § 1536(b); 50 C.F.R. § 402.14(a). 24 determines that its action "may affect" critical species or 25 habitat, then formal consultation is mandated. 26 Counsel v. Houston, 146 F.3d 1118, 1126 (9th Cir. 1998). 16 U.S.C. § 1536(a)(2). To this end, Section 7(b) If the action agency Nat'l Res. Def. 27 Plaintiffs argue that APHIS violated the ESA by failing to 28 consult with FWS to determine the effect of RRA deregulation on 21 1 threatened and endangered plants and animals and their habitats. 2 Pls.' MSJ at 11-12. 3 concluded that the RRA gene product would have "no effect" on 4 federal listed threatened or endangered species or on critical 5 habitat. 6 of "no effect" improperly focused on the RRA gene product and 7 unlawfully ignored the glyphosate use that will inevitably 8 accompany the planting of the glyphosate resistant crop. 9 at 11-12. APHIS declined to consult with FWS because it See ROD at 11. Plaintiffs argue that Defendants' finding Pls.' MSJ Plaintiffs suggest that the increased use of glyphosate United States District Court For the Northern District of California 10 resulting from deregulation will jeopardize a number of threatened 11 and endangered species listed under the ESA. 12 Plaintiffs point out that, under Wild Fish Conservancy v. Salazar, 13 628 F.3d 513, 525 (9th Cir. 2010), the agency must consider 14 indirect effects on threatened and endangered species when making a 15 finding of "no effect." See id. at 13. Id. at 12. 16 Defendants respond that APHIS was not required to consult on 17 the effects of glyphosate use because APHIS does not authorize or 18 regulate herbicide use and, as such, RRA deregulation is not the 19 legally relevant cause of any effects of such use on listed 20 species. 21 tasked EPA, not APHIS, with regulating herbicide use through the 22 Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"). 23 at 32. 24 glyphosate for use on RRA. 25 in part on the Supreme Court's decisions in Department of 26 Transportation v. Public Citizen, 541 U.S. 752 (2004), and National 27 Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644 28 (2007), Defendants argue that a defendant agency must be the "legal Defs.' MSJ at 31. Defendants point out that Congress Id. In 2004 and 2005, pursuant to FIFRA, EPA authorized See AR 2 429-31; AR 2 438-40. 22 Relying 1 cause" of the allegedly harmful effects in order for the agency to 2 be required to consult under Section 7 of the ESA. 3 Defendants reason that APHIS's deregulation determination is not 4 the legally relevant cause of harms stemming from glyphosate use 5 since EPA, not APHIS, regulates glyphosate.10 Id. at 32-33. Id. Plaintiffs argue that APHIS should not be allowed to ignore 6 7 its duties under the ESA by passing the buck to EPA. They contend 8 that "Plaintiffs are not challenging EPA's registration of 9 glyphosate, but APHIS's decision to allow unrestricted use of a United States District Court For the Northern District of California 10 cropping system specifically designed to be dependent on glyphosate 11 use." 12 conclusion that adherence to EPA guidelines will ensure that the 13 glyphosate used in conjunction with RRA will not adversely affect 14 threatened or endangered species. 15 EPA's comments on the FEIS, stating that APHIS had "erroneously 16 assum[ed]" that EPA had determined that glyphosate "poses no 17 unreasonable environmental risk to federally listed threatened and 18 endangered species." 19 argue that EPA has yet to assess the effects of glyphosate on 20 species found near the acreage on which glyphosate has or will be 21 used.11 Pls.' MSJ at 22. Plaintiffs also challenge APHIS's Id. at 23. Id. (quoting AR 4 670). Plaintiffs point to Plaintiffs also Id. at 24. 22 23 24 25 26 27 28 10 APHIS made a similar argument in Alfalfa I, asserting that the agency need not have considered glyphosate use in its NEPA analysis since "there are other federal agencies, primarily [EPA], that are responsible for regulating herbicides[.]" 2007 U.S. Dist. LEXIS 14533, at *32. The district court declined to rule on the issue because it had already determined that APHIS's NEPA analysis must consider the cumulative impact of increased glyphosate use with respect to the development of glyphosate resistant weeds. Id. 11 EPA has stated that it "intends to conduct a national-level Endangered Species Assessment as part of its registration review for glyphosate." AR 4 670. Registration review began in 2009 and a final registration review decision is expected in 2015. Id. 23 As the administrative record shows that RRA itself will have 1 ultimately turns on whether APHIS's actions are the legally 4 relevant cause of increased glyphosate use. 5 recently addressed the issue of legally relevant causation in 6 Public Citizen. 7 Federal Motor Carrier Safety Administration ("FMCSA") did not need 8 to consider the environmental effects of cross-border operations of 9 Mexican-domiciled trucks in its NEPA Environmental Assessment 10 United States District Court no effect on listed species, see FEIS 238-42, Plaintiffs' ESA claim 3 For the Northern District of California 2 because it lacked the discretion to prevent those operations. 11 Public Citizen, 541 U.S. at 770. 12 an agency has no ability to prevent a certain effect due to its 13 limited statutory authority over the relevant actions, the agency 14 cannot be considered a legally relevant 'cause' of the effect." 15 Id. 16 trucks [was] not FMCSA's action, but instead the actions of the 17 President in lifting the moratorium [on their entry] and those of 18 Congress in granting the President this authority while 19 simultaneously limiting FMCSA's discretion." 20 Court found that FMSCA did not have the discretion to countermand 21 the decisions of the President or Congress. 22 explained: 23 24 25 26 The Supreme Court In that case, the Supreme Court held that the The court explained that "where "[T]he legally relevant cause of the entry of the Mexican Id. at 769. Id. The The court [By statute,] FMSCA must grant registration to all domestic or foreign motor carriers that are "willing and able to comply with" the applicable safety fitness and financial responsibility requirements. [Citation] FMCSA has no statutory authority to impose or enforce emissions controls or to establish environmental requirements unrelated to motor carrier safety. 27 28 24 1 Id. at 758-759. 2 relationship is insufficient to make an agency responsible for a 3 particular effect under NEPA." 4 The court found that a "'but for' causal Id. at 767. In Homebuilders, the Supreme Court found that the principle 5 enunciated in Public Citizen -- "that an agency cannot be 6 considered the legal 'cause' of an action that it has no statutory 7 discretion not to take" -- also applied in the context of section 7 8 of the ESA. 9 challenged EPA's decision to transfer Clean Water Act ("CWA") 551 U.S. at 667. In that case, the plaintiffs United States District Court For the Northern District of California 10 permitting authority to a state without first insuring that the 11 transfer would not jeopardize endangered or threatened species. 12 Id. at 649. 13 section 7(a)(2) of the ESA only applied to discretionary action. 14 Id. at 669. 15 Homebuilders because the CWA required transfer of permitting 16 authority as certain triggering criteria had been met. 17 The Supreme Court stated that an agency's duties under The court found that EPA had no discretion in Id. In the instant action, APHIS is not the legally relevant cause 18 of the glyphosate use complained of by Plaintiffs. Under the PPA, 19 APHIS may only regulate a genetically engineered crop such as RRA 20 where the crop presents plant pest or noxious weed risk. 21 Section IV.A supra. 22 plant pest risk, it lacked further discretionary authority to 23 regulate the crop and thus could not be obligated to conduct 24 additional ESA analysis. 25 and how glyphosate is used. 26 to EPA through FIFRA and, pursuant to that authority, EPA has See Once APHIS determined that RRA did not pose a APHIS has no authority to regulate where Congress has delegated that authority 27 28 25 1 registered glyphosate for use on RRA.12 2 manageable line between those causal changes that may make an actor 3 responsible for an effect and those that do not." 4 541 U.S. at 767 (internal quotations and citations omitted). 5 Accordingly, the Court cannot hold APHIS responsible for herbicide 6 use regulated by EPA.13, The Court must "draw a Public Citizen, 14 If Plaintiffs allegations are true, then it is disturbing that 7 8 EPA has yet to assess the effects of glyphosate on most of the 9 species found near the acreage on which RRA will be planted and United States District Court For the Northern District of California 10 glyphosate will be used. See Pls.' MSJ at 23-24. 11 administrative record indicates that EPA will not complete a 12 national-level Endangered Species Assessment with respect to RRA 13 glyphosate use until 2015. 14 no position to evaluate EPA's compliance with the relevant 15 environmental laws. 16 administrative record is not before the Court. See AR 4 670. The However, the Court is in EPA is not a party to this action and its 17 18 19 20 21 22 23 24 25 26 27 28 12 Further, EPA must comply with the consultation requirements of the ESA when it registers herbicides and pesticides under FIFRA. See Wash. Toxics Coalition v. Envtl. Prot. Agency, 413 F.3d 1024, 1032 (9th Cir. 2005). 13 Despite APHIS's position that its deregulation determination is not the legally relevant cause of third-party glyphosate use, the agency's FEIS addresses the impact of glyphosate on the development of weeds. See Section IV.C.4 infra. The Court declines to address whether NEPA required APHIS to undertake this analysis. 14 Plaintiffs filed three extra-record declarations in support of their ESA claims. ECF Nos. 107 ("Cox Decl."), 108 ("Kegley Decl."), 109 ("Relyea Decl."). These declarations concern the risks posed to threatened and endangered species by glyphosate use. Defendants and Intervenor Defendants move to strike these declarations on the grounds that the Court's review should be limited to the administrative record. ECF Nos. 167 ("Intervenor Defs.' MTS"), 170 ("Defs.' MTS"). As the Court finds that APHIS's deregulation determination is not the legally relevant cause of increased glyphosate use, Plaintiff's extra-record declarations are irrelevant to the Court's ESA analysis. Accordingly, Defendants and Intervenor Defendants' motions to strike are DENIED as moot. 26 For these reasons, the Court GRANTS Defendants and Intervenor 1 2 Defendants' motions for summary judgment with respect to 3 Plaintiff's ESA claim. 4 C. National Environmental Policy Act ("NEPA") 5 With respect to Plaintiffs' NEPA claims, the Court must 6 determine whether APHIS's "decision was based on a consideration of 7 the relevant factors, or whether its actions were arbitrary, 8 capricious, an abuse of discretion or otherwise not in accordance 9 with the law." Blue Mountains Biodiversity Project v. Blackwood, United States District Court For the Northern District of California 10 161 F.3d 1208, 1211 (9th Cir. 2011) (internal quotation marks and 11 citation omitted). 12 agency has taken a 'hard look' at the environmental consequences of 13 its proposed action." 14 foreseeable direct and indirect impacts.'" 15 U.S. Forest Serv., 442 F.3d 1147, 1159 (9th Cir. 2006) (internal 16 quotation marks and citation omitted), overruled on other grounds 17 by Winter v. Nat'l Res. Def. Council, Inc., 555 U.S. 7, 21 (2008). 18 Plaintiffs argue that APHIS violated NEPA by (1) manipulating "In short, [the Court] must ensure that the Id. "A hard look includes considering all Earth Island Inst. v. 19 the scope of its EIS and ROD and its analysis of alternatives to 20 favor full deregulation of RRA, (2) failing to adequately analyze 21 the effectiveness of mitigation measures that APHIS claimed would 22 lessen the adverse impacts associated with deregulation, (3) 23 relying on data and analysis supplied by Monsanto, (4) failing to 24 adequately analyze the risks posed by glyphosate resistant weeds, 25 and (5) relying on unsupported assumptions in its contamination 26 assessment.15 Pls.' MSJ at 35-40; Pls.' Opp'n at 34-36, 38. 27 28 15 Plaintiffs appear to have abandoned their third claim that APHIS's reliance on new agency policies on "coexistence" was arbitrary and capricious. See FAC ¶ 201. 27 The 1 Court disagrees and finds that APHIS took the hard look required by 2 NEPA. 3 Defendants' motions for summary judgment with respect to 4 Plaintiff's NEPA claims. Accordingly, the Court GRANTS Defendants and Intervenor 1. 5 6 Alternatives Analysis Plaintiffs argue that APHIS's failure to acknowledge its 7 authority under the PPA to prevent noxious weed harms and to 8 partially deregulate RRA, discussed in Section IV.A supra, also led 9 APHIS to conduct a fundamentally flawed NEPA alternatives analysis. United States District Court For the Northern District of California 10 See Pls.' MSJ at 35. 11 erroneous view of its statutory authority, the agency established 12 an overly restrictive purpose and need statement in its EIS and 13 then improperly rejected the partial deregulation alternative. 14 at 34-38. 15 However, Plaintiffs contend that this analysis was "superfluous and 16 illusory" since, in the ROD, APHIS ultimately determined that it 17 lacked the authority to adopt such an option. 18 Plaintiffs state that they "are not challenging an exercise of 19 APHIS's discretion to select an alternative that Plaintiffs might 20 not prefer, but rather APHIS's erroneous failure to acknowledge and 21 exercise its discretion at all." 22 Plaintiffs assert that, based on APHIS's Id. APHIS did discuss partial deregulation in its FEIS. Id. at 37. Id. NEPA regulations provide that an EIS "shall briefly specify 23 the underlying purpose and need to which the agency is responding 24 in proposing the alternatives including the proposed action." 25 C.F.R. § 1502.13. 26 reasonableness standard. 27 Interior, 376 F.3d 853, 866 (9th Cir. 2004). 28 Ninth Circuit "has afforded agencies considerable discretion to 40 Courts evaluate a statement of purpose under a Westlands Water Dist. v. U.S. Dep't of 28 In doing so, the 1 define the purpose and need of a project." 2 v. Morrison, 153 F.3d 1059, 1066 (9th Cir. 1998). 3 objectives of the project serve as a guide by which to determine 4 the reasonableness of objectives outlined in an EIS." 5 Water Dist., 376 F.3d at 866. 6 strictures of NEPA" by "contriv[ing] a purpose so slender as to 7 define competing 'reasonable alternatives' out of consideration 8 (and even out of existence)." 9 Eng'rs, 120 F.3d 664, 666 (7th Cir. 1997). United States District Court For the Northern District of California 10 Friends of Se.'s Future "[T]he statutory Westlands An agency may not "slip past the Simmons v. U.S. Army Corps of The Court finds that Plaintiffs' arguments concerning APHIS's 11 alternatives analysis fail for the same reasons as their PPA 12 claims. 13 of its plant pest and noxious weed authority in this context is 14 consistent with the PPA and, thus, entitled to deference. 15 Accordingly, the Court cannot find that APHIS's purpose and need 16 statement is overly restrictive or that APHIS's decision to reject 17 the partial deregulation alternative was arbitrary and capricious. 18 19 As discussed in Section IV.A supra, APHIS's interpretation 2. Analysis of Mitigation Measures Plaintiffs also argue that APHIS's NEPA analysis failed to 20 adequately consider the effectiveness of the mitigation measures 21 proposed to reduce the environmental impacts of deregulation. 22 Pls.' MSJ at 40. 23 no oversight authority whatsoever, not one of the mitigation 24 measures proposed in the EIS is legally mandated. 25 Instead, the measures are premised on best management practices, 26 joint agreements among members of alfalfa grower trade 27 associations, or contractual arrangements between growers and 28 suppliers of seed. Plaintiffs complain that, because APHIS retained Id. Id. at 41. Plaintiffs contend that these mitigation 29 1 measures are unlikely to work since private actors have little 2 incentive or ability to enforce them. 3 Plaintiffs specifically criticize mitigation strategies intended to 4 address the risks of transgenic contamination and the development 5 of glyphosate resistant weeds. 6 See id. at 41-43. Id. Plaintiffs' arguments are unpersuasive. "[I]t would be 7 inconsistent with NEPA's reliance on procedural mechanisms . . . to 8 demand the presence of a fully developed plan that will mitigate 9 environmental harm before an agency can act." Robertson v. Methow United States District Court For the Northern District of California 10 Valley Citizens Council, 490 U.S. 332, 353 (1989). 11 plan "need not be legally enforceable, funded or even in final form 12 to comply with NEPA's procedural requirements." 13 Conservation Ass'n v. U.S. Dep't of Transp., 222 F.3d 677, 681 (9th 14 Cir. 2000). 15 took the requisite "hard look" at the possible mitigating 16 measures[.]" 17 468, 473 (9th Cir. 2000). 18 effectiveness of various mitigation strategies, including those 19 intended to reduce the risk of transgenic contamination and 20 glyphosate resistant weeds. 21 AR 3 11774-80; AR 3 10680-89. 22 requirements. 23 determination merely because stronger mitigation measures might 24 have been available. 25 26 3. A mitigation National Parks & The Court "need only be satisfied that the agency Okanogan Highlands Alliance v. Williams, 236 F.3d Here, APHIS's FEIS discussed the See, e.g., FEIS 111, 115, 164, 205-07; This analysis meets NEPA's hard-look The Court declines to vacate APHIS's deregulation Monsanto's Contributions to the FEIS Plaintiffs argue that the FEIS was flawed because "APHIS 27 simply cut and pasted Monsanto's reports into the FEIS's 28 appendices, passing them off as agency work product." 30 Pls. Opp'n 1 at 36. Plaintiffs contend this practice violated APHIS's duty to 2 independently evaluate the information submitted. 3 argument lacks merit. 4 agency may use information submitted by a third party in its FEIS, 5 "either directly or by reference," so long as that information is 6 independently evaluated and the names of the persons responsible 7 for the independent evaluation are included in the list of 8 preparers. 9 is that "acceptable work not be redone." Id. This NEPA regulations provide that a federal 40 C.F.R. § 1506.5(a). The purpose of the regulation Id. In the instant United States District Court For the Northern District of California 10 action, there is no indication that APHIS failed to independently 11 evaluate the material submitted by Monsanto. 12 preparers of the FEIS identifies the APHIS employees responsible 13 for review and acceptance of the material included in the FEIS, 14 including the appendices. 4. 15 Further, the list of See AR 3 9624. Glyphosate Resistant Weeds 16 Plaintiffs contend that APHIS's discussion of glyphosate 17 resistant weeds was fundamentally flawed for a variety of reasons. 18 These arguments are undercut by the administrative record. 19 Plaintiffs first complain that the agency "undertook no 20 analysis of the overall acreage that will be in continual 21 [glyphosate-tolerant] crop rotation with RRA, such as corn[,] . . . 22 or how the RRA deregulation will affect resistant weed development 23 in these rotations." 24 omitted). 25 that RRA introduction will "increase the number of acres in a 26 continual [glyphosate tolerant] crop rotation" and thereby could 27 "contribute to the development of these [glyphosate-resistant] 28 weeds in agricultural systems." Pls.' Opp'n at 39 (internal quotations However, as Plaintiffs concede, the ROD acknowledged ROD at 15. 31 The FEIS also 1 discussed the possibility that deregulation could lead to the 2 development of glyphosate resistant weeds. 3 129, 217-20, 222-23. 4 weeds depended on a number of factors and that, "[c]urrently, there 5 are no concrete data, information, or models that provide a 6 prescriptive determination on if or how many weed species may 7 evolve resistance to glyphosate[.]" 8 "not aware of any models that simulate the evolution of weeds 9 resistant to glyphosate in a [glyphosate tolerant] alfalfa See, e.g., FEIS 127- APHIS found that the development of such The agency was In light of limited data and models 10 United States District Court For the Northern District of California Id. Id. at 129. production system." 11 available, APHIS was not required to estimate the amount overall 12 acreage in continual glyphosate-tolerant crop rotation. 13 requires not that an agency engage in the most exhaustive 14 environmental analysis theoretically possible, but that it take a 15 'hard look' at relevant factors." 16 Marine Fisheries Serv., 460 F.3d 1125, 1139 (9th Cir. 2006). "NEPA Nw. Envtl. Advocates v. Nat'l 17 Next, Plaintiffs argue that APHIS minimized the problem of 18 glyphosate resistant weeds by stating that they infest only two 19 million acres when the agency knew the figure was five times higher 20 and by omitting discussion of factors that make RRA more likely to 21 foster such weeds. 22 unavailing. 23 different estimates of the total number of crop acres infested by 24 glyphosate resistant weeds. 25 acres); AR 3 10684 (7 million acres). 26 why one report is more accurate than the others. 27 included a variety of figures on this topic in the FEIS, including 28 one indicating that 38 million acres could be infested by 2013, AR Pls.' Opp'n at 39-40. This argument is The FEIS reports figures from several studies with See, e.g., FEIS at 34 (2 million 32 Plaintiffs offer no reason Further, as APHIS 1 3 10684, there is no indication that the agency was trying to 2 minimize the risk. 3 assertion, the FEIS does include a discussion of why RRA is likely 4 to foster glyphosate resistant weeds. Additionally, contrary to Plaintiffs' See AR 3 10678-689. cumulative impacts of the increase in non-glyphosate herbicide, 7 which will be used to control glyphosate resistant weeds. 8 Opp'n at 40-41. 9 acknowledges that deregulation could result in increased use of 10 United States District Court Plaintiffs also claim that APHIS failed to assess the 6 For the Northern District of California 5 non-glyphosate herbicides and assesses the cumulative impacts of 11 such a development. 12 222-23, 231-32. 13 the cumulative impacts associated with particular projections for 14 herbicide use. 15 an exhaustive analysis does not render the FEIS "so incomplete or 16 misleading that the decision maker and the public could not make an 17 informed comparison of the alternatives." 18 Hodel, 840 F.2d 1432, 1439 (9th Cir. 1988). 19 Pls.' This argument is contradicted by the FEIS, which See, e.g., FEIS at 152-55, 179-85, 187-88, Plaintiffs complain that APHIS failed to assess Pls. Opp'n at 40-41. However, the absence of such Animal Def. Council v. Finally, Plaintiffs argue that APHIS violated NEPA by failing 20 to address EPA's comments concerning herbicide resistant weeds. 21 Pls.' Opp'n at 41. 22 provide that "[t]he agency shall discuss at appropriate points in 23 the final statement any responsible opposing view which was not 24 adequately discussed in the draft statement and shall indicate the 25 agency's response to the issues raised." 26 EPA's comments on the DEIS concerning herbicide resistant weeds 27 primarily sought to clarify terms. 28 commented that it was dissatisfied with the FEIS because the This argument lacks merit. 33 NEPA regulations 40 C.F.R. § 1502.9. See AR 4 666-68. EPA later 1 language on which it had previously commented remained "confusing," 2 and suggested further clarifying language. 3 indication that EPA disagreed with APHIS's ultimate conclusion or 4 that EPA's suggestions for clarification represented an "opposing 5 view." 6 consideration before making its decision. 7 Id. There is no Further, APHIS stated that it took EPA's comments into ROD at 5. Accordingly, the Court finds that APHIS's analysis of 8 glyphosate resistant weeds satisfied NEPA's hard look requirements. 9 None of the purported deficiencies raised by Plaintiffs in this United States District Court For the Northern District of California 10 area, considered independently or holistically, provide sufficient 11 grounds to set aside APHIS's deregulation determination. 5. 12 13 Transgenic Contamination Finally, Plaintiffs contend that APHIS's discussion of 14 transgenic contamination relies on unsupported assumptions that are 15 contrary to the record. 16 Plaintiffs contend that APHIS failed to assess evidence of 17 contamination resulting from the limited acreage of RRA planted 18 prior to deregulation, including 2008 and 2009 contamination 19 reports by alfalfa seed producer Cal/West. 20 Pls.' Opp'n at 42. Specifically, Id. The Court finds that APHIS took the required hard look at the 21 risk of transgenic contamination. 22 in fact mention evidence of the contamination experienced by 23 Cal/West. 24 this evidence, but it is unclear what more Plaintiffs would have 25 APHIS do. 26 between alfalfa varieties, the potential socioeconomic impacts of 27 deregulation on conventional alfalfa farmers, and ultimately 28 concluded that contamination was possible but unlikely. Id. As Plaintiffs concede, APHIS did Plaintiffs complain that APHIS failed to "assess" The agency discussed the likelihood of gene transfer 34 See, e.g., 1 FEIS 25-28, 109-26, App. I (AR 3 10816), App. V (AR 3 11684). 2 Accordingly, the FEIS "contains a reasonably thorough discussion of 3 the significant aspects of the probable environmental consequences" 4 of deregulation, including the potential for transgenic 5 contamination. 6 1062, 1071 (9th Cir. 2002). See Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 7 8 9 V. CONCLUSION For the foregoing reasons, the Court GRANTS the motions for United States District Court For the Northern District of California 10 summary judgment filed by Defendants Thomas Vilsack and Gregory 11 Parham and by Intervenor Defendants and DENIES the motion for 12 summary judgment filed by Plaintiffs Center for Food Safety, et al. 13 The Court declines to vacate the deregulation of Roundup Ready 14 alfalfa. 15 16 IT IS SO ORDERED, ADJUDGED, and DECREED. 17 18 19 Dated: January 5, 2012 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 35

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