April 27, 2010

The Supreme Court Revisits NEPA: A Post-Argument Panel on Monsanto v. Geertson Farms

This spring, the Supreme Court accepted an expedited appeal in Monsanto v. Geertson Farms, concerning the scope of injunctive relief under the National Environmental Policy Act (NEPA). The case involved a long-running dispute over alleged harm caused by genetically modified alfalfa. The Ninth Circuit upheld a nationwide injunction on planting the genetically modified strain pending the government’s completion of a satisfactory environmental analysis. Monsanto argued the court relaxed the standard for injunctive relief because any alleged harm is at most "speculative" rather than "probable" or "likely."

Last term, in Winter v. Natural Resources Defense Council, the Supreme Court held that national security concerns trumped harm to marine mammals, thereby vacating an earlier NEPA injunction from the Ninth Circuit. Monsanto claimed the Ninth Circuit ignored the holding in Winter in this case. Will the Supreme Court limit the Winter holding to cases involving national security or will it extend Winter, raising the bar for plaintiffs who seek to halt economic activities until thorough environmental review is performed? Given that injunctions are a powerful remedy sought in many environmental cases, the stakes couldn't be higher.

Immediately following oral argument before the Supreme Court on April 27, ELI gathered attorneys involved in the case for a panel discussion about the argument, their impressions of how the Court will resolve the case, its political and legal context, and implications for the future use of injunctions in environmental cases.

Moderator:
Daniel Schramm, Environmental Law Institute

Panelists:
Cory Andrews, Washington Legal Foundation
Gregory Garre, Latham & Watkins; former U.S. Solicitor General
Eric Glitzenstein, Meyer, Glitzenstein & Crystal
George Kimbrell, Center for Food Safety

For information on the case:
http://www.scotuswiki.com/index.php?title=Monsanto_Company_v._Geertson_Seed_Farms

Downloads:

Article: Dangerous Waters? The Future of Irreparable Harm Under NEPA
Article: Damage Done? The Status of NEPA after Winter v. NRDC and Answers to Lingering Questions Left Open by the Court