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)

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 http://www.aphis.usda.gov/brs/aphisdocs/03_32301
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