ORDER REGARDING REMEDIES

JEFFREY S. WHITE, District Judge.

Now before the Court is the motion regarding remedies filed by plaintiffs Center for Food Safety, Organic Seed Alliance, Sierra Club, and High Mowing Organic Seeds (collectively, "Plaintiffs"). Plaintiffs seek a vacatur of the agency decision to deregulate genetically engineered sugar beets and a permanent injunction. Having considered the parties' arguments and relevant legal authority, the Court hereby GRANTS Plaintiffs' request for a vacatur but DENIES Plaintiffs' motion for a permanent injunction.1

BACKGROUND

In September 2009, the Court ruled that the decision by the United States Department of Agriculture ("USDA") and its Animal and Plant Health Inspection Service ("APHIS") to deregulate a variety of genetically engineered sugar beets without preparing an environmental impact statement ("EIS") violated the National Environmental Policy Act, 42 U.S.C. §§ 4321-4335 ("NEPA"). On March 16, 2010, the Court denied Plaintiffs' motion for a preliminary injunction. However, the Court admonished the parties that they should not assume that the Court's decision to deny a preliminary injunction was indicative of its views on a permanent injunction pending the full environmental review that APHIS is required to conduct. Rather, while the environmental review is pending, the Court warned the parties that it was inclined to order the Defendant-Intervenors to take all efforts, going forward, to use conventional seed. In light of Plaintiffs' showing of irreparable harm to the environment, the Court informed Defendants and Defendant-Intervenors that it was troubled by maintaining the status quo that consists of ninety-five percent of sugar beets being genetically engineered while APHIS conducts the environmental review that should have occurred before the sugar beets were deregulated. Moreover, the Court noted that the length of time that is necessary to conduct the full environmental review, as compared to the several months between the preliminary and permanent injunction hearing, could increase the likelihood and potential amount of irreparable harm to the environment.

Plaintiffs now move to vacate APHIS's decision to deregulate genetically engineered sugar beets and to enjoin all further planting, cultivation, processing, or other use of genetically engineered Roundup Ready sugar beets or sugar beet seeds, including but not limited to permitting any Roundup Ready sugar beet seed crop to flower pending APHIS's preparation of an EIS. In light of the Supreme Court's recent ruling in Monsanto Co. v. Geertson Seed Farms, ___ U.S. ___, ___, 130 S.Ct. 2743, 2761, 177 L.Ed.2d 461 (2010), Plaintiffs clarify that the order they seek from the Court would be without prejudice to Defendants taking interim measures that are compliant with the Plant Protection Act, NEPA and the Administrative Procedure Act ("APA").

Defendants Edward T. Schafer, in his official capacity as Secretary of the United States Department of Agriculture, and Cindy Smith, in her official capacity as Administrator of the Animal and Plant Health Inspection Service (collectively, "Defendants"), and Defendant-Intervenors American Sugarbeet Growers Association, Ervin Schlemmer, Mark Wettstein, John Synder, and Duane Grant, American Crystal Sugar Company, the Amalgamated Sugar Company, Western Sugar Cooperative, Wyoming Sugar Company, LLC, United States Beet Sugar Association, Betaseed, Inc., Monsanto Company, Syngenta Seeds, Inc., and SESVanderHave USA, Inc. (collectively, "Defendant-Intervenors") all oppose Plaintiffs' motion.

The Court shall discuss additional facts as necessary in the analysis.

ANALYSIS

A. Applicable Legal Standards.

The APA provides that a "reviewing court shall ... hold lawful and set aside agency action, findings and conclusions found to be ... arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). "In all cases agency action must be set aside if the action was `arbitrary, capricious, an abused of discretion, or otherwise not in accordance with law' or if the action failed to meet statutory, procedural, or constitutional requirements." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413-14, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Despite the mandatory language of the APA, the Ninth Circuit has held that although "ordinarily" regulations that are not promulgated in compliance with the APA are invalid, "when equity demands, the regulation can be left in place while the agency follows the necessary procedures." Idaho Farm Bureau Federation v. Babbitt, 58 F.3d 1392, 1405 (9th Cir.1995).

In the concurring opinion in Comcast Corp. v. F.C.C., 579 F.3d 1 (D.C.Cir.2009), Judge Randolph finds that the plain language of the statute mandates a reviewing court that finds an administrative rule or order unlawful to vacate the agency's action. Id. at 10 (Randolph, J., concurring) ("`[S]hall' means `must.' I see no play in the joints."). Judge Randolph laments that occasionally the D.C. Circuit has remanded invalid rules without vacating them, and notes that "none of those decisions made even the slightest attempt to square the remand-only disposition with § 706(2)(A)." Id. at 11. He notes that although "[i]t is easy to postulate cases in which vacating an agency rule or order might have dire consequences, ... the prospect is not a reason to disregard the command of § 706(2)(A)." Judge Randolph opines that the better approach in such circumstances, and one that is consistent with the statutory language of the APA, is to require the losing agency to file a motion to stay the mandate "showing why its unlawful rule or order should continue to govern until the proceedings on remand are completed." Id. Although this Court agrees with Judge Randolph, it is bound by the Ninth Circuit. The Ninth Circuit does not appear to require the agency to meet the standards required for a stay. Nevertheless, the Ninth Circuit has only found remand without vacatur warranted by equity concerns in limited circumstances, namely serious irreparable environmental injury.

For example, in Idaho Farm, the Ninth Circuit remanded without vacatur based on concerns that immediately vacating the regulation threatened the potential extinction of an animal species—an irreparable environmental injury. Id., 58 F.3d at 1405-06. The court did not refer to any potential harm that would have been incurred by leaving the listing of the endangered species in place while the agency reconsidered its decision. Id. Moreover, the error in question was merely the agency's failure to make available for public comment one study that the agency had relied upon in making its decision. Id. at 1405.

Similarly, in Western Oil and Gas v. EPA, 633 F.2d 803, 813 (9th Cir.1980), the court was reluctant to vacate the challenged designation based on "a desire to avoid thwarting in an unnecessary way the operation of the Clean Air Act in the State of California during the time the deliberative process is reenacted." The court was "also influenced by the possibility of undesirable consequences which [it could not] predict that might result from invalidation of the designations." Id. Based on "the unusual circumstances" of the case, the court left the challenged designations in place while the agency corrected its errors. Id. Again, the court did not refer to any potential harm that would have been incurred by leaving the designation in place. Id.; see also Natural Resources Defense Council, Inc. v. United States Depart. of Interior, 275 F.Supp.2d 1136, 1143-44 (C.D.Cal.2002) ("Both Idaho Farm Bureau and Western Oil involved challenges to rulemaking under environmental statutes. In that context the Ninth Circuit expressed special concern for the potentially one-sided and irreversible consequences of environmental damage prompted by vacating defective rules during remand.").2

The Ninth Circuit has not delineated specific standards governing when a court may remand an unlawful agency rule or order without vacatur. Therefore, the Court will apply the test set forth by the D.C. Circuit: "[t]he decision whether to vacate depends on the seriousness of the order's deficiencies (and thus the extent of doubt whether the agency chose correctly) and the disruptive consequences of an interim change that may itself be changed." Allied-Signal, Inc. v. United States Nuclear Regulatory Comm'n, 988 F.2d 146, 150 (D.C.Cir.1993). "[T]he second Allied-Signal factor is weighty only insofar as the agency may be able to rehabilitate its rational for the regulation." Comcast, 579 F.3d at 9.3

Defendants and Defendant-Intervenors argue that the Court should remand without vacating APHIS's deregulation decision. They contend that APHIS's deficiencies were not that serious or numerous and seem certain that APHIS will affirm its decision to deregulate genetically engineered sugar beets upon remand. The Court disagrees with their assessment of the seriousness of APHIS's errors. NEPA is a procedural statute designed to ensure comprehensive consideration of the environmental consequences of agency action. The fact that the Court has already found that APHIS failed to fully consider the potential consequences of deregulation and that Plaintiffs have shown that deregulation may significantly affect the environment demonstrates that APHIS's errors are not minor or insignificant. Moreover, APHIS's apparent position that it is merely a matter of time before they reinstate the same deregulation decision, or a modified version of this decision, and thus apparent perception that that conducting the requisite comprehensive review is a mere formality, causes some concern that Defendants are not taking this process seriously. Finally, the Court notes that Defendants request, at a minimum, a ninth-month delay of any vacatur in order to give APHIS time to implement interim measures. However, the Court ruled in September 2009, over ten months ago, that APHIS's deregulation decision without preparing an environmental impact statement was invalid. According to APHIS's position, it has already had more than sufficient time to take interim measures, but failed to act expediently.

With respect to the factor regarding disruptive consequences of an interim change that may itself be changed, despite the fact that the statutes at issue are designed to protect the environment, Defendants and Defendant-Intervenors focus on the economic consequences they claim Defendant-Intervenors would incur. In light of the limited circumstances in which the Ninth Circuit has determined that equity warranted remanding without a vacatur, it is not clear that economic consequences is a factor the Court may consider in environmental cases. See Natural Resources Defense Council, 275 F.Supp.2d at 1146 n. 21 (noting the "differences in character" between the potential irreversible environmental harm and any potential economic harm to private developers); see also Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency, 676 F.Supp.2d 307, 317 n. 10 (S.D.N.Y.2009) (questioning whether economic considerations may be given any weight in a decision regarding whether to vacate insecticide registrations by the EPA). The cases cited to by Defendants, none of which are environmental cases, do not support their proposition. See Milk Train, Inc. v. Veneman, 310 F.3d 747 (D.C.Cir.2002); Sugar Cane Growers Coop. of Florida v. Veneman, 289 F.3d 89 (D.C.Cir.2002); A.L. Pharma, Inc. v. Shalala, 62 F.3d 1484 (D.C.Cir.1995).

In Milk Train, large milk producers challenged the implementation by the Secretary of Agriculture of the 1999 subsidy program for dairy farmers. Id., 310 F.3d at 748-49. The court determined that the district court lacked jurisdiction to hear the first challenge to the Secretary's conduct and with respect to the second challenge, the court found that, based on the administrative record, it was unable to determine whether the Secretary's interpretation of the regulation was unlawful. Id. at 752, 755. Moreover, the 1999 subsidies had already been distributed to numerous farmers throughout the country and were not recoverable three years later. Id. at 756. Therefore, "[t]he egg [had] been scrambled and there [was] no apparent way to restore the status quo ante." Id. (quoting Sugar Cane Growers, 289 F.3d at 97). In this context, the court remanded the case without vacating the Secretary's decision. Id.

In Sugar Cane Growers, sugar cane growers, processors, refiners and marketers challenged the Secretary of Agriculture's implementation of a payment in kind program for the 2001 sugar crop. Id., 289 F.3d at 91. The court determined that the agency had violated the APA. However, before the court's decision, the payment in kind program had already been launched and crops were already plowed. Therefore, the court found that "[t]he egg [had] been scrambled and there [was] no apparent way to restore the status quo ante." Id. at 97. Accordingly, the court remanded without vacatur. Id. at 98.4

In A.L. Pharma, a competitor sought judicial review of the Food and Drug Administration's ("FDA") approval of an applicant's animal drug for sale. Id., 62 F.3d at 1486. In the early 1970's, an industry trade association conducted a study which provided an adequate basis for the FDA to determine that the drug was safe, but did not establish that the drug met the required efficacy standards. Id. The court remanded but declined to vacate the FDA's approval of the drug because the applicant had for thirteen years relied in good faith on the agency's decision. Moreover, it was significant that there was no evidence to suggest that any harm would result from allowing the approval to remain in effect pending the agency's further explanation regarding efficacy. Id. at 1492.

Moreover, even if the Court could consider the potential economic consequences of a vacatur in an environmental case, in light of the Court's determination that the declaration by Susan Henley Manning, Ph.D. is inadmissible, Defendants and Defendant-Intervenors have failed to demonstrate that serious economic harm would be incurred pending a full environmental review or any interim action by APHIS. Accordingly, the Court finds that equity does not warrant remand without issuing a vacatur.

Plaintiffs seek an injunction in addition to the vacatur of the deregulation decision. The Supreme Court recently stated in Monsanto, 130 S.Ct. at 2761, that recourse to the "additional and extraordinary relief of an injunction" was not warranted if a less drastic remedy, such as a vacatur of APHIS's deregulation decision, was sufficient to redress the plaintiff's injury. Here, Plaintiffs' only argument that a vacatur would not be sufficient to redress their injury is that Defendant-Intervenors or other third parties might violate the vacatur and APHIS might not be able to enforce the reinstated regulated status of genetically engineered sugar beets. (Plaintiffs' Suppl. Br. at 5-6.)5 The Court finds that any injury from such conduct is purely speculative and dependent on future conduct, and therefore, finds that Plaintiffs' request for an injunction is not warranted. Accordingly, the Court denies Plaintiffs' request for a permanent injunction. This Order is without prejudice to Plaintiffs seeking further redress if, after the deregulation decision is vacated, Plaintiffs can demonstrate that Defendant-Intervenors or other third parties have in fact violated the vacatur.

The Court will limit the vacatur to any planting of genetically modified sugar beets after the date of this Order. Because Plaintiffs apparently do not seek to have the vacatur apply to the genetically modified sugar beet root and seed crops planted before the date of this Order, the Court will not impose a vacatur that would require the destruction of the genetically engineered crop that has already been planted.6

CONCLUSION

For the foregoing reasons, the Court GRANTS Plaintiffs' request to vacate APHIS's decision to deregulate genetically engineered sugar beets and remands this matter to APHIS. Based on this vacatur, genetically engineered sugar beets are once again regulated articles pursuant to the Plant Protection Act. This vacatur applies to all future plantings and does not apply to genetically engineered sugar beet root and seed crops that were planted before the date of this Order. Therefore, such crops may be harvested and processed. The genetically engineered sugar beet root crop that has already been planted may be processed and sold as sugar. The genetically engineered sugar beet seed crop that has already been planted may be harvested and stored.

The Court DENIES Plaintiffs' request for a permanent injunction. The Clerk is directed to close the file.

IT IS SO ORDERED.