First One @ One First: Into the Weeds
Mike Sacks is guest-blogging at ABAJournal.com during his unique U.S. Supreme Court project, First One @ One First, which is to be first in line for politically salient arguments at the high court this term.
The U.S. Supreme Court today was slated to consider in Monsanto Co. v. Geertson Seed Farms how nigh the organic alfalfa apocalypse must be to justify a federal district court’s nationwide injunction against the use of an agricultural giant’s genetically modified alfalfa seed.
But the court this morning proved as resistant to the parties’ arguments as Monsanto’s alfalfa is to Roundup weed-killer. Instead of assessing, as expected, what degree of likelihood of environmental harm must be considered in order for a court to issue an injunction under the National Environmental Protection Act (NEPA), the justices spent the hour snarling at this case as if it were an unwanted weed growing in the Marble Temple.
First, some background and a few more acronyms. In 2004, the USDA’s Animal and Plant Health Inspection Service (APHIS) determined that Monsanto’s Roundup Ready Alfalfa (RRA) posed no threat to other plants and deregulated its use for planting and commercial sale. Geertson Seed Farms, along with other organic farmers and environmental groups, challenged APHIS’s decision in federal district court. In early 2007, Judge Charles Breyer—the brother of Justice Stephen Breyer, who recused himself from today’s case—found that the threat of cross-pollination between RRA and conventional alfalfa was strong enough to require that APHIS prepare an environmental impact statement (EIS) for RRA under NEPA’s procedural demands. As such, Judge Breyer vacated APHIS’s deregulation of RRA and enjoined Monsanto from distributing RRA until APHIS completed its EIS.
At today’s oral argument, the justices took turns trying to find the best way to yank this sucker out of the court. Moments into the opening statement of Greg Garre, counsel for Monsanto, Justice Samuel Alito interrupted, hoe in hand and ready to DIG—that is, dismiss as improvidently granted:
“If we agree with your argument that the 9th Circuit applied the wrong preliminary injunction standard and remand for them to apply the right preliminary injunction standard, the case may be moot by the time they do that. And the alternative is for us to plow into the extremely fact-bound question whether applying what you contend to be the correct preliminary injunction standard of relief would be warranted on this record. In light of all that, why shouldn’t we [dismiss the case as improvidently granted]?”
Garre responded by drawing the court’s attention to the broader legal issues he hoped the court would resolve, but Justice Ruth Bader Ginsburg doused him with a potent pesticidal shot, claiming that without a challenge to the vacatur, she didn’t “see how there’s anything for us to deal with.” Justice Sonia Sotomayor gave Garre’s case another spray of poison on the basis that Monsanto essentially gave up its argument that it should be allowed to continue distributing RRA when it didn’t seek certiorari on the ground of the district court’s striking down APHIS’s RRA deregulation.
At this point, Chief Justice John Roberts steps with a weed-wacker. He reminded Garre that “under the vacatur the normal [Administrative Procedure Act] remedy is a remand to the agency. In fact, there are some courts that say you can’t get anything else.” But this point cut both ways in Roberts’ sustained attack on the case throughout the hour. A remand to the agency would not only rob Monsanto of the legal ruling it sought regarding the standard courts should use in issuing injunctions under NEPA; it would also eliminate environmentalists’ hope for injunctive relief from friendly district courts on future challenges. The Chief Justice, with considerable understatement, then admonished district courts to think twice before issuing permanent injunctions against agency judgments: “It’s very odd to get an injunction to an agency telling them they can’t do something under the APA.”
When Malcolm Stewart of the Solicitor General’s office stepped forward to argue that the district court should have adopted the tailored injunction that APHIS offered at trial to satisfy the court’s initial misgiving about the RRA deregulation, the Chief Justice continued his attack. By doing anything short of a remand to the agency, the court would be impermissibly “stepping into the shoes of the agency” and “short-circuiting notice and comment and whatever else is required” when promulgating regulations, asserted the Chief.
By the time Lawrence Robbins began his argument for respondents Geertson Farms et al., Justice Scalia had grown tired of Roberts’ indiscriminate weed-wacking. He immediately attacked Robbins for daring to say that the corporation and not the environmentalists lacked standing to sue over the injunction in this case. After all, Scalia crafted the court’s modern standing doctrine nearly two decades ago practically to keep environmentalists out of court. Instead, Scalia wanted to know whether the respondents themselves had standing through any concrete harm.
As the hour concluded, the court looked to have at least five votes—Chief Justice Roberts and Justices Alito, Ginsburg, Sotomayor, and Kennedy—in favor of either DIGing the case or vacating the San Francisco-based 9th Circuit’s affirmation of the district court’s injunction, thereby sending the regulatory matter back to APHIS until it finally issues its EIS within the next year.
However, Justice John Paul Stevens, in his career’s penultimate oral argument, sat silently with Justice Clarence Thomas, refusing to follow his fellow justices into the weeds.