Conventional alfalfa growers Geertson Seed Farms and Trask Family Seeds, along with numerous consumer and environmental advocacy organizations (collectively Geertson),[1] brought suit in February 2006 against officials at the United States Department of Agriculture (USDA), the United States Environmental Protection Agency (EPA), and the USDA's Animal and Plant Health Inspection Service (APHIS) (collectively Defendants), alleging violations of the National Environmental Policy Act of 1969 (NEPA)[2] and other federal statutes. In February 2007, the district court held that APHIS violated NEPA by deregulating genetically engineered alfalfa (Roundup Ready alfalfa) without first preparing an environmental impact statement (EIS) and issued a permanent injunction barring future planting of genetically engineered alfalfa until APHIS's completion of an EIS.[3] The Ninth Circuit affirmed, holding that the district court correctly issued the permanent injunction and correctly decided not to conduct an evidentiary hearing prior to issuing an injunction.

Monsanto Company (Monsanto) is a large-scale manufacturer of chemical products, including herbicides and pesticides. Monsanto developed lines of Roundup Ready alfalfa, which are resistant to one of the company's leading herbicides, Roundup. Monsanto licensed the technology to Forage Genetics as the exclusive developer of Roundup Ready alfalfa seed.

APHIS, a division of USDA, is authorized to regulate "the introduction of organisms and products altered or produced through genetic engineering that are plant pests or are believed to be plant pests," which are also known as "regulated articles."[4] After APHIS initially classified Roundup Ready alfalfa as a regulated article, Monsanto petitioned APHIS, asking the agency to deregulate the Roundup Ready alfalfa. In response, APHIS published notice in the Federal Register, seeking public comment on the proposed deregulation. The notice explained that APHIS prepared an environmental assessment (EA) in accordance with NEPA that addressed the threat of genetic contamination of conventional alfalfa. Because of the presence of mandatory buffer zones around organic farming operations, the EA concluded it was "unlikely that Roundup Ready alfalfa would have a significant impact on organic farming."[5]

Of the 663 public comments received in response to the notice, 520 opposed Monsanto's petition and 137 supported the deregulation of Roundup Ready alfalfa. The alfalfa growers and seed producers who supported the petition argued there was a demand for weed-free alfalfa. Conversely, opponents of the petition expressed concern about inadvertent gene transmission and the possibility that markets might not accept contaminated alfalfa, which farmers could not guarantee to be free from genetic engineering. Opponents further advocated for APHIS to conduct an EIS to analyze the environmental effects of a range of alternatives. In June 2005, APHIS made a finding of no significant impact and unconditionally deregulated Roundup Ready alfalfa.[6]

Fearing that cross-pollination with Roundup Ready alfalfa would cause genetic contamination of conventional alfalfa, Geertson filed suit in federal district court, seeking to enjoin all future planting and harvesting of Roundup Ready alfalfa until APHIS completed an EIS. After conducting a hearing on the parties' cross-motions for summary judgment, the district court held APHIS "failed to take the required 'hard look'" demanded by NEPA regarding the extent to which the unconditional deregulation of Roundup Ready alfalfa would lead to genetic contamination of conventional alfalfa.[7] Monsanto and Forage Genetics joined with Defendants at the remedies phase and requested that planting of Roundup Ready alfalfa go forward subject to certain mitigating conditions.

At the remedies stage, the district court held two hearings on the scope of injunctive relief and considered "voluminous evidentiary submissions from both sides."[8] Geertson sought to enjoin all future planting and harvesting of Roundup Ready alfalfa until the completion of an EIS. Defendants requested that future planting continue, subject to certain conditions proposed by APHIS, such as required isolation from other crops and harvesting methods that minimize gene flow to nongenetically engineered alfalfa seeds. Monsanto and Forage Genetics also requested-and were denied-an evidentiary hearing before the issuance of a permanent injunction. In May 2007, the district court permanently enjoined the planting of all Roundup Ready alfalfa after March 30, 2007, pending APHIS's completion of an EIS.

On appeal to the Ninth Circuit, Defendants did not challenge the district court's finding of a NEPA violation. Defendants disputed only the scope of the permanent injunction and whether the district court should have held an evidentiary hearing before issuing the injunction. The Ninth Circuit reviewed the district court's injunction for abuse of discretion.[9] To obtain a permanent injunction, a plaintiff must show 1) irreparable injury, 2) inadequacy of remedies available at law to compensate for the plaintiff's injury, 3) the balance of hardships favors issuance of an equitable remedy, and 4) a permanent injunction will serve the public interest.[10]

In challenging the scope of the permanent injunction, Defendants argued the district court erred in its analysis by not applying the four-factor balancing test required by the United States Supreme Court.[11] Defendants argued that the scope of the permanent injunction was overly broad because the district court improperly presumed irreparable injury and did not consider APHIS's proposed mitigation measures when examining the potential for harm.

The Ninth Circuit rejected Defendants' argument and held the district court properly applied the traditional balancing test. Although the balance of harms often favors permanent injunctive relief in environmental injury cases,[12] the Ninth Circuit recognized that courts cannot categorically grant or deny injunctive relief in lieu of applying the four-factor test.[13] However, the Ninth Circuit concluded that the district court correctly applied the four-factor test.

First, with regard to irreparable harm requirement, the Ninth Circuit determined the district court did not presume the likelihood of harm based on APHIS's failure to prepare an EIS. The district court found that Roundup Ready alfalfa already led to genetic contamination of conventional alfalfa crops, despite Monsanto and Forage Genetics' use of mitigation measures similar to those originally proposed by APHIS. Further, the district court found farmers could not replant alfalfa for two to four years after the removal of contaminated plants. Therefore, the Ninth Circuit held the district court properly concluded that Geerston established the presence of an irreparable injury.

Second, the Ninth Circuit considered the balance of hardships between Geerston and Defendants. The district court recognized the economic harm to Defendants, but noted that Roundup Ready alfalfa accounted for a relatively small percentage of Monsanto's and Forage Genetics' total revenues, and that unsold seed could be stored for future planting. By enjoining only future planting and allowing any planted Roundup Ready alfalfa to remain, the Ninth Circuit concluded the district court crafted an injunctive remedy that addressed hardships on both sides. Further, the Ninth Circuit held the district court did not disregard Monsanto and Forage Genetics' economic losses, but instead concluded that the injury to conventional alfalfa growers and consumers exceeded the harm to Defendants.

Third, in considering the public interest factor, the Ninth Circuit affirmed the district court's determination that the public interest would benefit from a ban on future planting of Roundup Ready alfalfa until further study of the plant's impacts. The court reasoned that failure to enjoin further use of the seed could potentially eliminate the availability of conventional and organic alfalfa.

The Ninth Circuit turned next to Defendants' argument that the district court should have deferred to APHIS's proposed mitigation measures and permitted future planting of Roundup Ready alfalfa under the agency's recommended conditions. In rejecting this argument, the Ninth Circuit reasoned that such measures would perpetuate the very system found by the district court to have already caused environmental harm. Accordingly, the Ninth Circuit affirmed the scope of the permanent injunction and held that the district court properly applied the four-factor test for permanent injunctions.

Finally, the Ninth Circuit considered whether the district court erred in denying Monsanto and Forage Genetics'[14] request for an evidentiary hearing. The Ninth Circuit held the district court did not err in declining to hold a further evidentiary hearing because the injunction involved only interim measures. Further, the district court considered other extensive evidence during the remedy phase of the proceedings.

In affirming the lower court's decision not to hold an evidentiary hearing, the Ninth Circuit relied on the case of Idaho Watersheds Project v. Hahn (Idaho Watersheds).[15] According to the Ninth Circuit, a permanent injunction crafted to ensure compliance with NEPA has a more limited purpose and duration than a typical permanent injunction.[16] Like the permanent injunction in Idaho Watersheds, which the court designed to ensure NEPA compliance, the Ninth Circuit noted that the permanent injunction in the instant case involved interim measures that "would be in place only until the EIS was completed, at which point the parties would have 'extensive input' into the determination of which measures would be adopted permanently."[17] Moreover, the Ninth Circuit recognized that upon APHIS's completion of the EIS, all parties would have adequate opportunity to address or challenge the permanence of any actions and comment on any new decision regarding deregulation. Finally, relying on Idaho Watersheds, the Ninth Circuit concluded the district court properly denied the request for an evidentiary hearing because the hearing would result in an inquiry similar to the NEPA analysis ordered by the court. Accordingly, the Ninth Circuit affirmed the permanent injunction as a proper application of the traditional balance of harms analysis, holding the district court did not err in declining to hold an evidentiary hearing before issuing the permanent injunction.

In sum, the Ninth Circuit held the district court properly issued an injunction, which would last only until APHIS's completion of an EIS, and denied the Defendants' request for an evidentiary hearing.

Judge N. Randy Smith dissented, criticizing the majority's decision to affirm the district court's denial of the requisite evidentiary hearing. According to Judge Smith, "the district court was required to conduct an evidentiary hearing before issuing a permanent injunction . . . unless 1) the facts were undisputed; or 2) the adverse party expressly waived its right to an evidentiary hearing."[18] Finding that the facts were "sharply disputed by the parties,"[19] and that Monsanto and Forage Genetics requested an evidentiary hearing, Judge Smith claimed that the Ninth Circuit improperly denied the request for an evidentiary hearing.

Judge Smith argued that the Ninth Circuit deprived the parties of important procedural rights and created an entirely new exception to the established evidentiary hearing requirement.[20] Judge Smith reasoned that the evidentiary hearing requirement is essential because it affords the district court an opportunity to "better ascertain the nature of the alleged injury and to further understand the balance of the hardships associated with the parties' varying proposals for injunctive relief."[21] According to Judge Smith, the consideration of witness testimony, along with the opportunity for cross-examination, is the procedural protection justifying the abuse of discretion standard of review. Because the court did not conduct an evidentiary hearing, Judge Smith argued there was no need for the Ninth Circuit to afford the lower court any discretion in reviewing the court's permanent injunction order. Finally, reiterating his "serious concerns" with the scope of the injunction, Judge Smith indicated he would have remanded the case and require that the district court conduct an evidentiary hearing.[22]