SAN FRANCISCO (CN) - In back-to-back hearings before the 9th Circuit, farmers and environmental groups decried the deregulation of genetically modified sugar beets and alfalfa.
Earthjustice attorney Peter Achitoff says the U.S. Department of Agriculture's Animal and Plant Health Inspection Service (APHIS) should not have granted commercial grower Monsanto permits to plant herbicide-resistant sugar beets that were set to expire in five months.
A federal judge concluded that the permits represented a blatant violation of the National Environmental Policy Act.
"My clients were wrongly denied their fundamental right to protect themselves and the public interest in court from conduct the lower court found flagrantly illegal," Achitoff said. "The government and industry transparently colluded to violate the law and circumvent a lower court ruling that plaintiffs obtained after three years of hard-fought litigation: vacating the agency's genetically engineered sugar beets deregulation, making it unlawful to plant the crop without prior NEPA review. They did so in a way specially designed to allow continued production of crop without prior NEPA review while preventing plaintiffs from holding them accountable in court."
U.S. Attorney Matthew Littleton countered that the dispute is moot because the court can no longer award effective relief.
"APHIS has completed an environmental impact statement, the most comprehensive document envisioned by NEPA," Littleton said. "The agency used the results of that analysis when it decided in July of this year that the Roundup Ready sugar beet is not a plant pest that is subject to regulation at all under the Plant Protection Act."
The Roundup-resistant sugar beet plants in question had already been uprooted and destroyed, Littleton added.
"The specific plants that were planted under the terms of these permits - those plants have been removed from the ground at this point," he said. "They were moved in fall 2011. So there is no further harm that could possibly be done with respect to those plants."
Achitoff disputed that the matter has ended, noting that the court could still prohibit further seed planting and impose safeguards to protect the land and nearby endangered species from contamination, even if it cannot order the crop destroyed.
In the next hearing, Center for Food Safety attorney George Kimbrell told the three-judge panel that it would nullify the Endangered Species Act, the Plant Protection Act and the National Environmental Policy Act to restrain the agency from regulating Monsanto-manufactured Roundup Ready Alfalfa.
"NEPA would become a meaningless paper exercise which the agency cold ignore," Kimbrell said. "The Endangered Species Act could be ignored. And the Plant Protection Act would no longer apply to the true harms of Roundup Ready Alfalfa or similar herbicide resistant crops like it, which would be essentially unregulated."
Nodding to the farmers from Idaho and South Dakota in the courtroom, Kimbrell said: "We're talking about acknowledged harm to dozens of protected species as well as potentially hundreds of millions of dollars in lost farmer costs, sales and markets."
Judge N. Randy Smith grilled the lawyer on this point.
"It seems to me you're agreeing that they have discretion in doing what they need to do," Smith said. "They went a different way than what you may think they ought to have gone. But nonetheless they determined, using their discretion, that this does not violate the Plant Protection Act.
APHIS looked at the plant law and determined the alfalfa was not a parasitic plant, the only kind it has authority to regulate, he continued.
"I'm having a tough time understanding why their decision was not discretionary," Smith said. "They had to interpret the act. It seems to me that it's going to be hard thing for our court to undo at least their decision as it relates to the Plant Protection Act."
Kimbrell countered: "I think their argument is that it needs to be a parasitic plant unfortunately that's contrary to 20 years of their own practice."