Tuesday, January 19, 2010

Race to the finish line for Monsanto's GE Alfalfa

This past Friday, the U.S. Supreme Court granted the petition of certiorari in order to hear the GE Alfalfa case, Monsanto Co. v. Geertson Seed Farms, No. 09-475, that has been causing quite a stir in the biotech world. This is fortuitous for many involved in biotech crops as a similar decision came out recently regarding Round-up Ready Sugar Beets. The Sugar Beet case had a similar result to alfalfa in that it required an Environmental Impact Statement (EIS) to look at possible consequences on the human environment instead of the less stringent Environmental Assessment (EA) that was performed by the Animal and Plant Health Inspection Service (APHIS). The petitioner's brief is due February 25, 2010 and the Respondent's Brief is due March 25, 2010, while the end of the October 2009 term for the U.S. Supreme Court is over in June 2010. This makes everything sound like it is on the fast track to hearing a decision relatively quickly, at least in terms of typical judicial time continuum.

However, there is a factor that could cause a concern with this case being heard if it is not rectified with an Order to Stay by the Supreme Court. The EIS that was ordered by the U.S. District Court in the N.D. of California has been completed by the USDA and the comment period is scheduled to close on February 16, 2010. The EIS came to a finding of no significant impact (FONSI) on the human environment, and more than likely, after review comments, APHIS will deregulate GE Alfalfa. This process could potentially take anywhere from 2-6 months depending on the amount of comments. I would expect there to be a lot of comments with the longevity and passion surrounding this issue, and the recent nod from the U.S. Supreme Court. This means the decision from USDA could be out sometime this summer. This could potentially cause a problem for Petitioner who wanted to create a precedent regarding deregulation of GE seeds, as the case may be moot by the time of oral argument or decision.

Article III of the U.S. Constitution has a case or controversy requirement that forms part of its standing analysis, (a.k.a. whether or not the person bring the suit is the proper party to bring the suit if one still exists). In order for a case to be heard there must have at least two litigants that have a controversy upon which the Court can issue a ruling. If the Alfalfa is deregulated prior to a ruling, than Monsanto no longer has a controversy as the alfalfa seed would be like it was prior to a suit ever being brought by a plaintiff, therefore creating a situation where the opinion would be an advisory opinion from the Supreme Court as the gravaman of the suit is moot.

This problem could be solved by Monsanto motioning for a stay of administrative procedures and the U.S. Supreme Court granting such a stay. This may have been done, but I have not seen anything evidencing it yet. The other way to have it solved is to have the Supreme Court move at the same speed of the famous Bush v. Gore case, but I would put my money on the former of my suggestions to occur first.