Key Practice Points From the Decision

• The threat of cross-pollination, transgenic contamination or increased herbicide use is not a plant pest risk under the Plant Protection Act (PPA). Such harms fall outside the definition of "injury," "damage" or "disease."
• Once APHIS determined there was no plant pest risk, it no longer had jurisdiction to regulate Roundup Ready Alfalfa and, therefore, had no obligation to consult under the Endangered Species Act (ESA) or analyze alternatives under the National Environmental Policy Act (NEPA).
• Unless specifically requested to do so, the US Department of Agriculture's Animal and Plant Health Inspection Service (APHIS) is not obligated to perform a noxious weed analysis in conjunction with a review of a petition for deregulation. There is a separate process to request listing of a plant as a noxious weed.

SUMMARY AND SIGNIFICANCE

On May 17, 2013, the Ninth Circuit Court of Appeals issued a game-changing decision regarding court challenges to APHIS deregulation determinations for genetically engineered (GE) plants and agricultural commodities -- in this case, Round Up Ready™ Alfalfa (RRA). The Court held that once APHIS determined that a GE agricultural commodity was not a "plant pest," then the agency lacked jurisdiction to consult under the ESA or conduct an alternatives analysis under NEPA. This is consequential because, to date, non-governmental organizations (NGOs) have challenged APHIS's deregulation determinations as not being compliant with ESA and NEPA. However, the Ninth's Circuit's ruling makes NEPA and ESA compliance relevant only when APHIIS determines that a GE agricultural commodity is a "plant pest" under the PPA. The Court also found that APHIS had no independent obligation to analyze RRA as a noxious weed where a petition to do so was not filed with the agency. The Ninth Circuit decision is also significant in that it interprets the PPA to exclude from the definition of plant pests, those plants and agricultural commodities that pose a risk of transgenic contamination resulting from cross-pollination or where increased herbicide resistance could develop.

THE NINTH CIRCUIT'S DECISION

In addressing plaintiffs' claims, the court focused on the threshold question as to whether RRA met the definition of "plant pest" under the PPA. See Slip Op. at 22 ("This appeal thus turns on whether the agency properly determined that RRA is not a 'plant pest' under the PPA."). The PPA charges APHIS with the duty of regulating organisms that cause "injury," "damage" or "disease" to other plants. See 7 U.S.C. § 7702(14). If RRA is not a "plant pest," the agency lacked jurisdiction to regulate the plant and was required to order deregulation. Plaintiffs argued that RRA was a "plant pest" because it could cause transgenic contamination through "gene flow" and herbicide resistance. APHIS countered that it does not classify a plant as a plant pest based on cross-pollination effects, arguing that such effects do not harm a plant within the meaning of the PPA. The court agreed with APHIS that gene flow and herbicide resistance were not plant pest concerns under the PPA. See Slip Op. at 26 ("The PPA was enacted to protect plants, but not to control the burgeoning use of chemicals in crop production.").

Next, the court found that APHIS's decision on whether RRA constituted a "plant pest" determined whether it had a duty to consult under the ESA or conduct an alternatives analysis under NEPA. The court ruled that the consultation requirement of the ESA is triggered "only when the agency has authority to take action and discretion to decide what action to take." Id. at 27. Where APHIS lacks the discretion to take an action, such as in situations where it lacks jurisdiction to regulate a plant, there is no duty to consult under the ESA. Id. ("There is no point in consulting if the agency has no choices."). Similarly, the court found that APHIS had no duty to analyze alternatives under NEPA when faced with a non-discretionary action. Id. ("Here, there were no reasonable alternatives to deregulation because the agency lacks jurisdiction to regulate RRA.").

Finally, the court found that APHIS had no duty to investigate independently the potential for RRA to be a noxious weed. The court's ruling was based upon the fact that neither the PPA, nor APHIS's regulations imposed a duty to conduct a noxious weed analysis when responding to a petition to deregulate a plant. Id. at 30. The court noted that the procedures for deregulating a plant and investigating the potential of a noxious weed were governed by separate regulatory frameworks, thus there was no basis for requiring both analyses to occur simultaneously.

PRACTICAL CONSIDERATIONS

This decision is important for three main reasons. First, it provides a limiting interpretation of plant pest by narrowing the definition of the type of harm that would qualify as "injury," "damage" or "disease" to other plants under the PPA. This interpretation should help deregulation petitioners focus their petitions on physiological, toxicological and similar types of effects that the PPA was meant to address. Second, the decision affirms that an agency's decision to deregulate a plant under the PPA is a nondiscretionary act, thereby limiting the agency's obligations under the ESA and NEPA. This will lead to reduced uncertainty because once a GE plant or agricultural commodity is deregulated, biotech companies, seed producers and growers can utilize the technology without the uncertainty that six years later an NGO will sue under NEPA to invalidate the deregulation. Third, the court's decision acknowledges that APHIS has no independent duty to analyze a plant as a noxious weed prior to making a deregulation determination.

However, the decision does not necessarily end the inquiry into impact of gene flow, herbicide resistance or ESA consultation, as other agencies may decide to address such issues.