SAMUEL CONTI, District Judge.
Plaintiffs Center for Food Safety, et al. ("Plaintiffs") bring this action for violations of the National Environmental Policy Act ("NEPA"), the Plant Protection Act ("PPA"), the Endangered Species Act ("ESA"), and the Administrative Procedure Act ("APA") against Defendant Thomas J. Vilsack, in his official capacity as Secretary of the United States Department of Agriculture ("USDA"), and Defendant Gregory Parham, in his official capacity as the Administrator for the U.S. Department of Agriculture's Animal and Plant Health Inspection Service ("APHIS") (collectively, "Defendants").
Plaintiffs challenge the decision of APHIS, an agency within the USDA, to deregulate genetically engineered alfalfa lines J101 and J1063, also known as Roundup Ready Alfalfa ("RRA"). Alfalfa is the fourth most widely grown crop in the nation, and the third most valuable. Final Environmental Impact Statement ("FEIS") at 22-23.
RRA is designed to withstand direct application of glyphosate, the active ingredient in herbicide formulations manufactured and sold by Monsanto by the commercial name Roundup. See 70 Fed. Reg. 36917-19; AR 1 1555. A farmer planting this genetically engineered form of alfalfa could spray glyphosate directly on or over crops to remove weeds without harming the alfalfa plants. See FEIS at 3-4. Monsanto and Forage Genetics developed RRA to "increase alfalfa forage and seed purity through better control of most of the weeds that impact forage and seed production;" "enable alfalfa production on marginal lands with severe weed infestations;" and "provide growers with a weed-control system that has a reduced risk profile for the environment"; among other things. Id. at 4.
Plaintiffs argue that deregulation of RRA poses significant risks to the environment. First, deregulation will increase the use of glyphosate, which is toxic to various plant and animal species. See FEIS at vi; Pls.' MSJ at 5. Second, replacing conventional alfalfa with RRA may worsen the problem of glyphosate resistant weeds. See FEIS at 132; Pls.' MSJ at 6. When glyphosate is used year after year, weeds naturally resistant to glyphosate survive, and may then reproduce and flourish. See FEIS at 131-35. Third, deregulation could result in increased gene flow from genetically engineered crops to conventional, organic, and wild plants. See FEIS at 17; Pls.' MSJ at 6. Plaintiffs contend that such transgenic contamination could result in the loss of natural varieties of alfalfa
The PPA gives the Secretary of the USDA the authority to adopt regulations preventing the introduction and dissemination of plant pests. 7 U.S.C. § 7711(a). Pursuant to this authority, the USDA, through APHIS, regulates "organisms and products altered or produced through genetic engineering that are plant pests or are believed to be plant pests." 7 C.F.R. § 340.0(a)(2) n. 1. Such products and organisms are known as "regulated articles." See id. § 340.0.
APHIS originally considered RRA to be a regulated article. See 70 Fed. Reg. 36917-36918. Accordingly, it was unlawful for any person to introduce RRA without first obtaining permission from APHIS. In April 2004, Monsanto and Forage Genetics submitted to APHIS a request for determination of nonregulated status for RRA pursuant to 7 C.F.R. § 340.6. AR 1 1553-1958. In 2005, after considering hundreds of public comments and preparing an Environmental Assessment, APHIS issued a Finding of No Significant Impact and decided to deregulate RRA unconditionally, without preparing an Environmental Impact Statement ("EIS"). 70 Fed. Reg. 36917-36918.
Approximately eight months later, various plaintiffs, including a number of the plaintiffs in the instant action, filed suit in this district to challenge APHIS's Environmental Assessment, Finding of No Significant Impact, and its decision to deregulate RRA. Geertson Seed Farms v. Johanns, No. 06-01075 CRB ("Alfalfa I"). The court granted summary judgment in favor of the plaintiffs, finding that APHIS had violated NEPA because its Environmental Assessment was inadequate and its Finding of No Significant Impact was arbitrary and capricious. Alfalfa I, 2007 WL 518624, *12, 2007 U.S. Dist. LEXIS 14533, *37-38 (N.D.Cal. Feb. 13, 2007). The Court found that APHIS's Environmental Assessment failed to answer "substantial questions" concerning the impacts of deregulation, including "whether [] the deregulation of RRA would lead to the transmission of the engineered gene to organic and conventional alfalfa" and "the possible extent of such transmission"; "farmers' ability to protect their crops from the genetically engineered gene"; and "the extent to which RRA will contribute to the development of Roundup-resistant weeds." Id. Through subsequent orders, the court (1) vacated APHIS's deregulation of RRA; (2) ordered APHIS to prepare an EIS before it made any decision on Monsanto's deregulation petition; and (3) enjoined the planting of any RRA in the United States after March 30, 2007.
APHIS, Monsanto, and Forage Genetics appealed the Alfalfa I remedy. The Ninth Circuit affirmed the decision of the district court, but the Supreme Court reversed and remanded. Monsanto Co. v. Geertson Seed Farms, ___ U.S. ___, 130 S.Ct. 2743, 2761-62, 177 L.Ed.2d 461 (2010). The Supreme Court held that the district court "abused its discretion in enjoining APHIS from effecting a partial deregulation [pending APHIS's preparation of an EIS]
In December 2009, APHIS published a draft EIS ("DEIS") concerning the deregulation of RRA. The DEIS analyzed only two alternatives: (1) "no action," i.e., the regulated status of RRA would remain unchanged; and (2) full deregulation. DEIS (AR 213640-15115) at 11-14. The DEIS dismissed partial deregulation options, such as imposing isolation distances and geographic restrictions to restrict transgenic contamination, because APHIS concluded that it lacked the regulatory authority to enforce such options. Id. at 14-15. Specifically, APHIS concluded that it had no jurisdiction to regulate RRA once it determined that RRA did not pose a plant pest risk. See id. at 14. During the 75-day comment period, APHIS received approximately 244,000 public comments on the DEIS. FEIS at 9.
In December 2010, APHIS released its final EIS ("FEIS"), which included a new, "co-preferred" alternative. See FEIS at 13. Under the new alternative, APHIS would partially deregulate RRA through a combination of isolation distances and geographic restrictions intended to reduce the risks of transgenic contamination. Id. In this alternative, a marketer of RRA would ensure that end users implemented the required management practices through contracts, licenses, or other means. Id.
In January 2011, APHIS issued a Record of Decision ("ROD"), fully deregulating RRA and allowing it to be grown without any restriction or oversight. ROD (AR 4988-1004) at 1. APHIS stated that the full deregulation alternative was consistent with the regulatory requirements in 7 C.F.R. part 340 and that RRA "do[es] not pose a greater plant pest risk than other conventional alfalfa varieties." Id. at 5. APHIS acknowledged that full deregulation could lead to transgenic contamination through the transfer of pollen or seed mixing, increased use of glyphosate, and the evolution and proliferation of glyphosate-resistant weeds. Id. at 8-10. APHIS identified the no action alternative as the "environmentally preferred alternative," but decided against adopting it because "it d[id] not meet the agency's purpose and need ... to make a decision that is consistent with its existing statutory authority and regulatory program" and because "APHIS has not identified any plant pest risks associated with [RRA]." Id. at 15. APHIS explained that it decided against partial deregulation because it had not identified any plant pest risks associated with RRA and, accordingly, "the restrictions in [the partial deregulation alternative] are not consistent with APHIS' regulatory authorities." ROD at 14.
Plaintiffs filed the instant action in federal court on March 18, 2011 and filed their First Amended Complaint ("FAC") one month later. ECF Nos. 1 ("Compl."); 13 ("FAC"). The FAC asserts five claims against Defendants. See FAC ¶¶ 176-221. The first three claims are for violations of NEPA and the APA, the fourth is for violations of the PPA and the APA, and the fifth is for violation of the ESA. Id.
Plaintiffs' three NEPA claims assert, respectively, that (1) APHIS failed to adequately consider the various environmental consequences of its deregulation determination, (2) APHIS's NEPA process was
Plaintiffs' fourth claim for violations of the PPA and APA assert that APHIS's deregulation determination was arbitrary and capricious and not based on sound science. Plaintiffs allege that APHIS violated the PPA by failing to adequately consider: the effects of the glyphosate use that will result from deregulation; noxious weed risks; and transgenic contamination. Id. at 205-207. Plaintiff also challenges as arbitrary and capricious APHIS's conclusions that partial deregulation of RRA was inconsistent with APHIS's authority and mission, that RRA will not harm organic growers or various species beneficial to agriculture, and that RRA will not create a noxious weed risk. Id. ¶¶ 208-211.
Finally, Plaintiffs' fifth claim for violation of the ESA asserts that APHIS failed to insure, in consultation with the United States Fish and Wildlife Service ("FWS"), that deregulation of RRA would not harm protected species or critical habitat. Id. ¶ 215.
Entry of summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Summary judgment should be granted if the evidence would require a directed verdict for the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, "Rule 56[] mandates the entry of summary judgment... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255, 106 S.Ct. 2505. However, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252, 106 S.Ct. 2505.
When the court reviews a government agency's final action, the Rule 56 standard for summary judgment is amplified by 5 U.S.C. § 706(2) of the Administrative Procedure Act. Title 5 U.S.C. § 706 provides the applicable standard of review for agency
"In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error." 5 U.S.C. § 706. Summary judgment in a case of judicial review of agency action requires the court to review the administrative record to determine whether the agency's action was "arbitrary and capricious, an abuse of discretion, not in accordance with law, or unsupported by substantial evidence on the record taken as a whole." Environment Now! v. Espy, 877 F.Supp. 1397, 1421 (E.D.Cal.1994) (citing Good Samaritan Hospital, Corvallis v. Mathews, 609 F.2d 949, 951 (9th Cir.1979)).
"The court is not empowered to substitute its judgment for that of the agency." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 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). The Ninth Circuit recognizes a narrow scope of review applicable to agency action: "Assuming that statutory procedures meet constitutional requirements, the court is limited to a determination of whether the agency substantially complied with its statutory and regulatory procedures, whether its factual determinations were supported by substantial evidence, and whether its action was arbitrary, capricious or an abuse of discretion." Toohey v. Nitze, 429 F.2d 1332, 1334 (9th Cir.1970), cert. denied, 400 U.S. 1022, 91 S.Ct. 585, 27 L.Ed.2d 633 (1971). Despite this narrow scope of review, the court is still expected to make a "thorough, probing, in-depth review" of the administrative record to ensure the validity of the agency action and "must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Overton Park, 401 U.S. at 415-16, 91 S.Ct. 814.
Congress enacted the PPA in 2000 to replace the former Plant Quarantine Act, the Federal Plant Pest Act, and the Federal Noxious Weed Act. See Pub.L. No. 106-224, 114 Stat. 438 (codified at 42 U.S.C. § 7701 et seq.) The PPA provides that APHIS may take certain actions "necessary to prevent ... the dissemination of a plant pest or noxious weed within the United States." 7 U.S.C. § 7712(a). Congress mandated that all of APHIS's decisions "shall be based on sound science." Id. §§ 7701(4), 7711(b), 7712(b). APHIS's implementing regulations concerning transgenic plants, 7 C.F.R. Part 340, were promulgated pursuant to its previous, narrower Federal Plant Pest Act authority and therefore reference only plant pest harms, and not noxious weed harms. See 52 Fed. Reg. 22,908; 58 Fed. Reg. 17,044; 62 Fed. Reg. 23,945.
Plaintiffs assert that APHIS violated the PPA because (1) APHIS failed to consider the noxious weed harms of deregulation; (2) APHIS's conclusion that it could not partially deregulate RRA was arbitrary and capricious; and (3) APHIS's plant pest determination was not based on sound science. See Pls.' MSJ at 36-31 30; Pls.' Opp'n at 20-31; FAC ¶¶ 202-12. For the reasons discussed below, the Court finds
Plaintiffs first argue that "APHIS completely failed to undertake its statutorily mandated obligation to investigate whether RRA poses noxious weed risks." Pls.' MSJ at 25. Plaintiffs argue that, under the PPA's expansive noxious weed mandate, APHIS was required, to the extent practicable, to limit the resulting noxious weed impacts of deregulating RRA. Id. at 28. Yet, "APHIS nowhere applied or even acknowledged its noxious weed authority in approving RRA." Id. at 29. Plaintiffs concede that 7 C.F.R. Part 340, the regulation under which APHIS exercised its authority to deregulate RRA, does not require an analysis of noxious weed effects. Id. Plaintiffs also concede that the proposed amendments to Part 340 — which would incorporate noxious weed effects — have not been finalized. Id. However, Plaintiffs argue that APHIS was still required to analyze noxious weed effects pursuant to its express statutory mandate. Id. Plaintiffs contend RRA poses the types of noxious weed risks encompassed by the statute since it may foster the development of glyphosate resistant weeds and threaten organic growers through transgenic contamination. Id. at 28.
Defendants respond that Plaintiffs' noxious weeds argument is premised on a misunderstanding of the PPA's existing statutory and regulatory structure. Defs.' Opp'n at 2. Defendants argue that, in enacting the PPA, Congress maintained the distinction between the regulation of plant pests and noxious weeds and that APHIS's regulations reflect that distinction. Defs.' MSJ at 18. Defendants acknowledge that APHIS has issued a proposed rule that would amend the regulations so as to incorporate noxious weed effects into decisions on petitions to deregulate genetically engineered plants. Defs.' Opp'n at 3. However, Defendants insist that APHIS is bound to act in accordance with its current rules and regulations until they have been formally amended. Id. Intervenor Defendants argue that Plaintiffs' noxious weed argument is barred by their failure to exhaust administrative remedies as they have failed to petition APHIS to add RRA to the regulatory list of noxious weeds. Intervenor Defs.' MSJ at 44. Intervenor Defendants further argue that Plaintiffs cannot show that RRA is a noxious weed. Id. at 43.
In enacting the PPA, Congress provided distinct mechanisms for regulating plant pests and noxious weeds. Section 7711(a) of the codified Act prohibits the "unauthorized movement of plant pests" absent regulatory permission, while section 7712(f)(1) provides that "the Secretary may publish, by regulation, a list of noxious weeds that are prohibited or restricted from entering the United States or that are subject to restrictions on interstate movement[.]" In accordance with this framework, APHIS exercises its statutory authority over plant pests and noxious weeds pursuant to two distinct regulations — 7 C.F.R. Part 340 relates to plants pests and 7 C.F.R. Part 360 relates to noxious weeds. APHIS's reasonable interpretation of its statutory mandate is entitled to deference.
In light of the prevailing statutory and regulatory framework, the Court agrees with Defendants. Prior to the decision challenged by Plaintiffs, RRA was a regulated article under the plant pest regulations in 7 C.F.R. Part 340. APHIS was then presented with a petition for nonregulated status brought under 7 C.F.R. § 340.6, see AR 1 1553, and it acted accordingly. APHIS's decision to deregulate RRA was based on its determination that RRA did not pose a plant pest risk and there is no indication that the agency strayed from the current regulations in Part 340 in reaching that determination. Plaintiffs do not dispute that RRA has never been included on the regulatory list of noxious weeds promulgated pursuant to Part 360. Nor do Plaintiffs dispute that they have not petitioned APHIS to include RRA on this list.
Plaintiffs next argue that APHIS's determination that RRA does not pose a plant pest risk was arbitrary and capricious and not based on sound science. Pls.' Opp'n at 25-32. Plaintiffs specifically point to four instances in which APHIS allegedly ignored record evidence in reaching its plant pest risk determination. See id.
First, Plaintiffs argue that APHIS improperly ignored evidence that RRA deregulation will harm "raw or processed commodities" through transgenic contamination, i.e., cross-pollination with organic and conventional alfalfa. Id. at 25. The Court disagrees. Nothing in the PPA indicates that APHIS must account for the effects of cross-pollination on other commercial crops in conducting its plant pest risk assessment. The PPA defines a plant pest as a "protozoan," "nonhuman animal," "parasitic plant," "bacterium," "fungus," "virus or viroid," or "infectious agent or other pathogen." 7 U.S.C. § 7702(14). None of these organisms are pests because they might cross-pollinate with commercial crops. Thus, there is no reason to believe that Congress intended for APHIS to regulate commercial crops as plant pests because they pose a risk of transgenic contamination. APHIS's regulatory list of plant pests is consistent with this interpretation. See 7 C.F.R. § 340.2. Additionally, APHIS did not ignore the potential economic impacts on conventional and organic alfalfa growers. These issues were considered in the agency's NEPA analysis. See FEIS at 38-70. Accordingly, the Court finds that APHIS's plant pest risk determination did not improperly ignore the risk of transgenic contamination.
Second, Plaintiffs contend that APHIS failed to consider the effect of deregulation on the development on glyphosate resistant weeds. See Pls.' Opp'n at 28. Plaintiffs argue that deregulation will result in increased use of herbicides by farmers which, in turn, will enable herbicide resistant
Third, Plaintiffs argue that APHIS improperly ignored evidence that deregulation will increase the risk of plant disease. Pls.' Opp'n at 31. APHIS had concluded that RRA, "whether sprayed with glyphosate or not, w[as] found to be similarly affected by typical plant diseases found in alfalfa, and do[es] not harbor an altered pest or pathogen community compared to other alfalfa varieties." AR 3 11816-17. Plaintiffs argue that APHIS reached this conclusion by improperly relying on Monsanto's "anecdotal, unscientific `observations,'" and ignored other studies reaching contrary conclusions. Pls.' Opp'n at 32. Plaintiffs contend that the administrative record shows that glyphosate treated Roundup Ready crops harbor elevated levels of soil pathogens in their root tissues and that such pathogens increase the severity of crop disease. Id. Plaintiffs' argument is unpersuasive since, as discussed above, the PPA requires APHIS to consider the plant pest risks posed by a regulated article — in this case, RRA — not herbicides which may be used in conjunction with that regulated article. Further, in its NEPA analysis, APHIS considered a number of studies not addressed by Plaintiffs; these found no direct evidence that glyphosate use is linked to the development of plant disease. See, e.g., AR 3 11360-61. Courts "grant considerable discretion to agencies on matters `requir[ing] a high level of technical expertise.'" Ecology Ctr. v. Castaneda, 574 F.3d 652, 658 (9th Cir. 2009) (quoting Marsh v. Or. Natural Res. Council, 490 U.S. 360, 377, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989)). "[I]t is not our role to weigh competing scientific analyses." Id. at 659. Accordingly, based on the conflicting studies in the administrative record, the Court cannot conclude that APHIS's conclusions concerning plant disease lacked a basis in sound science.
Fourth, Plaintiffs contend APHIS ignored evidence that RRA deregulation will increase the "weediness" of feral alfalfa. Pls.' Opp'n at 26-28. Specifically, Plaintiffs argue that RRA will cross-pollinate with feral alfalfa and that the resulting feral RRA will become a problem weed which farmers will be unable to eradicate through the application of glyphosate. Id. at 27. Plaintiffs' argument fails for several reasons. First, the administrative record shows that APHIS's plant pest risk assessment addressed the potential weed risks posed by RRA. See AR 3 11807-15. After considering a number of technical studies involving field trials and growth experiments, the agency concluded that "no unusual characteristics were noted that would suggest increased weediness of [RRA] plant populations." AR 3 11815. Second, Plaintiffs' argument ignores the fact that APHIS considered and discussed alternative methods to control RRA in feral
For these reasons, the Court cannot conclude that APHIS's plant pest risk assessment was arbitrary and capricious or lacked a basis in sound science.
Plaintiffs also challenge as arbitrary and capricious APHIS's conclusion that it could not partially regulate RRA under the PPA once it determined that RRA was not a plant pest. See Pls.' MSJ at 30. In the ROD, APHIS had rejected the partial deregulation alternative because it was "not consistent with APHIS's regulatory authorities." ROD at 14. Plaintiffs argue that APHIS's final decision was based on the false assumption that its authority was so limited that it had to ignore the impacts of glyphosate resistant weeds and transgenic contamination. See Pls.' MSJ at 31. Plaintiffs further argue that APHIS's contention that it could not partially deregulate RRA is inconsistent with its own prior positions as well as judicial precedent. See id. at 33.
Defendants do not dispute that APHIS's decision against partial deregulation was predicated on its finding that RRA did not pose a plant pest risk. Defendants also agree that, under the PPA, APHIS may regulate a genetically engineered plant in part. Defs. Opp'n at 5. However, Defendants contend that partial regulation must be based on either (1) an acknowledged plant pest risk or (2) the continued presumption of such a risk in the absence of APHIS's scientific finding to the contrary. Id. at 7. Defendants submit that, in the instant action, neither element is present since APHIS determined that RRA did not present a plant pest risk. Id.
The Court agrees with Defendants. APHIS's conclusion that it could not continue to regulate RRA once it determined that the crop did not pose a plant pest risk is entitled to deference as it is consistent with the current statutory and regulatory framework. See Chevron, 467 U.S. at 865, 104 S.Ct. 2778. Under both the PPA and agency regulations, APHIS's authority to regulate organisms such as RRA is predicated upon the existence of a plant pest risk. The PPA provides, in relevant part, that APHIS may regulate any plant or plant product if it determines that regulation is necessary to prevent the dissemination of a plant pest. See 7 U.S.C. § 7712. APHIS's regulations also define a "regulated article" according to plant pest risk. See 7 C.F.R. § 340.1. As explained in section IV.A.2 supra, the Court declines to second-guess APHIS's determination that RRA does not pose a plant pest risk.
The Court also rejects Plaintiffs' contention that APHIS's deregulation decision is somehow inconsistent with the agency's prior determinations. Plaintiffs point to APHIS's decision to partially deregulate Roundup Ready sugar beets. But that determination was made in response to a request for partial deregulation, not full deregulation, and APHIS's assessment of the request did not reach the issue of whether the crops would pose a plant pest risk if they were fully deregulated. See Sugar Beets Interim PPRA at 1.
The judicial precedent relied on by Plaintiffs is also inapposite. In Monsanto, the Supreme Court addressed the different regulatory alternatives available to
For these reasons, the Court finds that APHIS's RRA deregulation determination did not violate the PPA.
Section 7(a)(2) of the ESA requires each federal agency to "insure that any action, authorized, funded, or carried out by [the] agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species[.]" 16 U.S.C. § 1536(a)(2). To this end, Section 7(b) requires an action agency to consult with FWS if it finds that a federal action may affect a listed species or critical habitat. Id. § 1536(b); 50 C.F.R. § 402.14(a). If the action agency determines that its action "may affect" critical species or habitat, then formal consultation is mandated. Nat'l Res. Def. Council v. Houston, 146 F.3d 1118, 1126 (9th Cir.1998).
Plaintiffs argue that APHIS violated the ESA by failing to consult with FWS to determine the effect of RRA deregulation on threatened and endangered plants and animals and their habitats. Pls.' MSJ at 11-12. APHIS declined to consult with FWS because it concluded that the RRA gene product would have "no effect" on federal listed threatened or endangered species or on critical habitat. See ROD at 11. Plaintiffs argue that Defendants' finding of "no effect" improperly focused on the RRA gene product and unlawfully ignored the glyphosate use that will inevitably accompany the planting of the glyphosate resistant crop. Pls.' MSJ at 11-12. Plaintiffs suggest that the increased use of glyphosate resulting from deregulation will jeopardize a number of threatened and endangered species listed under the ESA. See id. at 13. Plaintiffs point out that, under Wild Fish Conservancy v. Salazar, 628 F.3d 513, 525 (9th Cir.2010), the agency must consider indirect effects on threatened and endangered species when making a finding of "no effect." Id. at 12.
Defendants respond that APHIS was not required to consult on the effects of glyphosate use because APHIS does not authorize or regulate herbicide use and, as such, RRA deregulation is not the legally relevant cause of any effects of such use on listed species. Defs.' MSJ at 31. Defendants point out that Congress tasked EPA, not APHIS, with regulating herbicide use through the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"). Id. at 32. In 2004 and 2005, pursuant to FIFRA, EPA authorized glyphosate for use on RRA. See AR 2429-31; AR 2438-40. Relying in part on the Supreme Court's decisions in Department of Transportation v. Public Citizen, 541 U.S. 752, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004), and National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007), Defendants argue that a defendant agency must be the "legal cause" of the allegedly harmful effects in order for the agency to be required to consult under Section 7 of the ESA. Id. at 32-33. Defendants reason
Plaintiffs argue that APHIS should not be allowed to ignore its duties under the ESA by passing the buck to EPA. They contend that "Plaintiffs are not challenging EPA's registration of glyphosate, but APHIS's decision to allow unrestricted use of a cropping system specifically designed to be dependent on glyphosate use." Pls.' MSJ at 22. Plaintiffs also challenge APHIS's conclusion that adherence to EPA guidelines will ensure that the glyphosate used in conjunction with RRA will not adversely affect threatened or endangered species. Id. at 23. Plaintiffs point to EPA's comments on the FEIS, stating that APHIS had "erroneously assum[ed]" that EPA had determined that glyphosate "poses no unreasonable environmental risk to federally listed threatened and endangered species." Id. (quoting AR 4 670). Plaintiffs also argue that EPA has yet to assess the effects of glyphosate on species found near the acreage on which glyphosate has or will be used.
As the administrative record shows that RRA itself will have no effect on listed species, see FEIS 238-42, Plaintiffs' ESA claim ultimately turns on whether APHIS's actions are the legally relevant cause of increased glyphosate use. The Supreme Court recently addressed the issue of legally relevant causation in Public Citizen. In that case, the Supreme Court held that the Federal Motor Carrier Safety Administration ("FMCSA") did not need to consider the environmental effects of cross-border operations of Mexican-domiciled trucks in its NEPA Environmental Assessment because it lacked the discretion to prevent those operations. Public Citizen, 541 U.S. at 770, 124 S.Ct. 2204. The court explained that "where an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant `cause' of the effect." Id. "[T]he legally relevant cause of the entry of the Mexican trucks [was] not FMCSA's action, but instead the actions of the President in lifting the moratorium [on their entry] and those of Congress in granting the President this authority while simultaneously limiting FMCSA's discretion." Id. at 769, 124 S.Ct. 2204. The Court found that FMSCA did not have the discretion to countermand the decisions of the President or Congress. Id. The court explained:
Id. at 758-759, 124 S.Ct. 2204. The court found that a "`but for' causal relationship is insufficient to make an agency responsible
In Home Builders, the Supreme Court found that the principle enunciated in Public Citizen — "that an agency cannot be considered the legal `cause' of an action that it has no statutory discretion not to take" — also applied in the context of section 7 of the ESA. 551 U.S. at 667, 127 S.Ct. 2518. In that case, the plaintiffs challenged EPA's decision to transfer Clean Water Act ("CWA") permitting authority to a state without first insuring that the transfer would not jeopardize endangered or threatened species. Id. at 649, 127 S.Ct. 2518. The Supreme Court stated that an agency's duties under section 7(a)(2) of the ESA only applied to discretionary action. Id. at 669, 127 S.Ct. 2518. The court found that EPA had no discretion in Home Builders because the CWA required transfer of permitting authority as certain triggering criteria had been met. Id.
In the instant action, APHIS is not the legally relevant cause of the glyphosate use complained of by Plaintiffs. Under the PPA, APHIS may only regulate a genetically engineered crop such as RRA where the crop presents plant pest or noxious weed risk. See Section IV.A supra. Once APHIS determined that RRA did not pose a plant pest risk, it lacked further discretionary authority to regulate the crop and thus could not be obligated to conduct additional ESA analysis. APHIS has no authority to regulate where and how glyphosate is used. Congress has delegated that authority to EPA through FIFRA and, pursuant to that authority, EPA has registered glyphosate for use on RRA.
If Plaintiffs allegations are true, then it is disturbing that EPA has yet to assess the effects of glyphosate on most of the species found near the acreage on which RRA will be planted and glyphosate will be used. See Pls.' MSJ at 23-24. The administrative record indicates that EPA will not complete a national-level Endangered Species Assessment with respect to RRA glyphosate use until 2015. See AR 4 670. However, the Court is in no position to evaluate EPA's compliance with the relevant
For these reasons, the Court GRANTS Defendants and Intervenor Defendants' motions for summary judgment with respect to Plaintiff's ESA claim.
With respect to Plaintiffs' NEPA claims, the Court must determine whether APHIS's "decision was based on a consideration of the relevant factors, or whether its actions were arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law." Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir.1998) (internal quotation marks and citation omitted). "In short, [the Court] must ensure that the agency has taken a `hard look' at the environmental consequences of its proposed action." Id. "A hard look includes considering all foreseeable direct and indirect impacts.'" Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1159 (9th Cir. 2006) (internal quotation marks and citation omitted), overruled on other grounds by Winter v. Nat'l Res. Def. Council, Inc., 555 U.S. 7, 21, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).
Plaintiffs argue that APHIS violated NEPA by (1) manipulating the scope of its EIS and ROD and its analysis of alternatives to favor full deregulation of RRA, (2) failing to adequately analyze the effectiveness of mitigation measures that APHIS claimed would lessen the adverse impacts associated with deregulation, (3) relying on data and analysis supplied by Monsanto, (4) failing to adequately analyze the risks posed by glyphosate resistant weeds, and (5) relying on unsupported assumptions in its contamination assessment.
Plaintiffs argue that APHIS's failure to acknowledge its authority under the PPA to prevent noxious weed harms and to partially deregulate RRA, discussed in Section IV.A supra, also led APHIS to conduct a fundamentally flawed NEPA alternatives analysis. See Pls.' MSJ at 35. Plaintiffs assert that, based on APHIS's erroneous view of its statutory authority, the agency established an overly restrictive purpose and need statement in its EIS and then improperly rejected the partial deregulation alternative. Id. at 34-38. APHIS did discuss partial deregulation in its FEIS. However, Plaintiffs contend that this analysis was "superfluous and illusory" since, in the ROD, APHIS ultimately determined that it lacked the authority to adopt such an option. Id. at 37. Plaintiffs state that they "are not challenging an exercise of APHIS's discretion to select an alternative that Plaintiffs might not prefer, but rather APHIS's erroneous failure to acknowledge and exercise its discretion at all." Id.
NEPA regulations provide that an EIS "shall briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action." 40 C.F.R. § 1502.13. Courts evaluate a statement of purpose under a reasonableness standard. Westlands Water Dist. v. U.S. Dep't of Interior, 376 F.3d 853, 866 (9th Cir.2004).
The Court finds that Plaintiffs' arguments concerning APHIS's alternatives analysis fail for the same reasons as their PPA claims. As discussed in Section IV.A supra, APHIS's interpretation of its plant pest and noxious weed authority in this context is consistent with the PPA and, thus, entitled to deference. Accordingly, the Court cannot find that APHIS's purpose and need statement is overly restrictive or that APHIS's decision to reject the partial deregulation alternative was arbitrary and capricious.
Plaintiffs also argue that APHIS's NEPA analysis failed to adequately consider the effectiveness of the mitigation measures proposed to reduce the environmental impacts of deregulation. Pls.' MSJ at 40. Plaintiffs complain that, because APHIS retained no oversight authority whatsoever, not one of the mitigation measures proposed in the EIS is legally mandated. Id. at 41. Instead, the measures are premised on best management practices, joint agreements among members of alfalfa grower trade associations, or contractual arrangements between growers and suppliers of seed. Id. Plaintiffs contend that these mitigation measures are unlikely to work since private actors have little incentive or ability to enforce them. See id. at 41-43.
Plaintiffs specifically criticize mitigation strategies intended to address the risks of transgenic contamination and the development of glyphosate resistant weeds. Id.
Plaintiffs' arguments are unpersuasive. "[I]t would be inconsistent with NEPA's reliance on procedural mechanisms... to demand the presence of a fully developed plan that will mitigate environmental harm before an agency can act." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 353, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). A mitigation plan "need not be legally enforceable, funded or even in final form to comply with NEPA's procedural requirements." National Parks & Conservation Ass'n v. U.S. Dep't of Transp., 222 F.3d 677, 681 (9th Cir.2000). The Court "need only be satisfied that the agency took the requisite "hard look" at the possible mitigating measures[.]" Okanogan Highlands Alliance v. Williams, 236 F.3d 468, 473 (9th Cir.2000). Here, APHIS's FEIS discussed the effectiveness of various mitigation strategies, including those intended to reduce the risk of transgenic contamination and glyphosate resistant weeds. See, e.g., FEIS 111, 115, 164, 205-07; AR 3 11774-80; AR 3 10680-89. This analysis meets NEPA's hard-look requirements. The Court declines to vacate APHIS's deregulation determination merely because stronger mitigation measures might have been available.
Plaintiffs argue that the FEIS was flawed because "APHIS simply cut and pasted Monsanto's reports into the FEIS's appendices, passing them off as agency work product." Pls. Opp'n at 36. Plaintiffs contend this practice violated
Plaintiffs contend that APHIS's discussion of glyphosate resistant weeds was fundamentally flawed for a variety of reasons. These arguments are undercut by the administrative record.
Plaintiffs first complain that the agency "undertook no analysis of the overall acreage that will be in continual [glyphosate-tolerant] crop rotation with RRA, such as corn[,] ... or how the RRA deregulation will affect resistant weed development in these rotations." Pls.' Opp'n at 39 (internal quotations omitted). However, as Plaintiffs concede, the ROD acknowledged that RRA introduction will "increase the number of acres in a continual [glyphosate tolerant] crop rotation" and thereby could "contribute to the development of these [glyphosate-resistant] weeds in agricultural systems." ROD at 15. The FEIS also discussed the possibility that deregulation could lead to the development of glyphosate resistant weeds. See, e.g., FEIS 127-129, 217-20, 222-23. APHIS found that the development of such weeds depended on a number of factors and that, "[c]urrently, there are no concrete data, information, or models that provide a prescriptive determination on if or how many weed species may evolve resistance to glyphosate[.]" Id. at 129. The agency was "not aware of any models that simulate the evolution of weeds resistant to glyphosate in a [glyphosate tolerant] alfalfa production system." Id. In light of limited data and models available, APHIS was not required to estimate the amount overall acreage in continual glyphosate-tolerant crop rotation. "NEPA requires not that an agency engage in the most exhaustive environmental analysis theoretically possible, but that it take a `hard look' at relevant factors." Nw. Envtl. Advocates v. Nat'l Marine Fisheries Serv., 460 F.3d 1125, 1139 (9th Cir.2006).
Next, Plaintiffs argue that APHIS minimized the problem of glyphosate resistant weeds by stating that they infest only two million acres when the agency knew the figure was five times higher and by omitting discussion of factors that make RRA more likely to foster such weeds. Pls.' Opp'n at 39-40. This argument is unavailing. The FEIS reports figures from several studies with different estimates of the total number of crop acres infested by glyphosate resistant weeds. See, e.g., FEIS at 34 (2 million acres); AR 3 10684 (7 million acres). Plaintiffs offer no reason why one report is more accurate than the others. Further, as APHIS included a variety of figures on this topic in the FEIS, including one indicating that 38 million acres could be infested by 2013, AR 3 10684, there is no indication that the agency was trying to minimize the risk. Additionally, contrary to Plaintiffs' assertion, the FEIS does include a discussion of why RRA is likely to foster glyphosate resistant weeds. See AR 3 10678-689.
Plaintiffs also claim that APHIS failed to assess the cumulative impacts of the
Finally, Plaintiffs argue that APHIS violated NEPA by failing to address EPA's comments concerning herbicide resistant weeds. Pls.' Opp'n at 41. This argument lacks merit. NEPA regulations provide that "[t]he agency shall discuss at appropriate points in the final statement any responsible opposing view which was not adequately discussed in the draft statement and shall indicate the agency's response to the issues raised." 40 C.F.R. § 1502.9. EPA's comments on the DEIS concerning herbicide resistant weeds primarily sought to clarify terms. See AR 4 666-68. EPA later commented that it was dissatisfied with the FEIS because the language on which it had previously commented remained "confusing," and suggested further clarifying language. Id. There is no indication that EPA disagreed with APHIS's ultimate conclusion or that EPA's suggestions for clarification represented an "opposing view." Further, APHIS stated that it took EPA's comments into consideration before making its decision. ROD at 5.
Accordingly, the Court finds that APHIS's analysis of glyphosate resistant weeds satisfied NEPA's hard look requirements. None of the purported deficiencies raised by Plaintiffs in this area, considered independently or holistically, provide sufficient grounds to set aside APHIS's deregulation determination.
Finally, Plaintiffs contend that APHIS's discussion of transgenic contamination relies on unsupported assumptions that are contrary to the record. Pls.' Opp'n at 42. Specifically, Plaintiffs contend that APHIS failed to assess evidence of contamination resulting from the limited acreage of RRA planted prior to deregulation, including 2008 and 2009 contamination reports by alfalfa seed producer Cal/West. Id.
The Court finds that APHIS took the required hard look at the risk of transgenic contamination. As Plaintiffs concede, APHIS did in fact mention evidence of the contamination experienced by Cal/West. Id. Plaintiffs complain that APHIS failed to "assess" this evidence, but it is unclear what more Plaintiffs would have APHIS do. The agency discussed the likelihood of gene transfer between alfalfa varieties, the potential socioeconomic impacts of deregulation on conventional alfalfa farmers, and ultimately concluded that contamination was possible but unlikely. See, e.g., FEIS 25-28, 109-26, App. I (AR 3 10816), App. V (AR 3 11684). Accordingly, the FEIS "contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences" of deregulation, including the potential for transgenic contamination. See Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1071 (9th Cir.2002).
For the foregoing reasons, the Court GRANTS the motions for summary judgment
IT IS SO ORDERED, ADJUDGED, and DECREED.
