Late yesterday, federal district Judge Jeffrey White ruled that conservation and food safety groups challenging the planting of genetically engineered sugar beets were likely to succeed in their court case. The ruling comes in response to a lawsuit filed by Earthjustice and Center for Food Safety on behalf of Center for Food Safety, Organic Seed Alliance, High Mowing Organic Seeds, and the Sierra Club against the United States Department of Agriculture (USDA). The groups are seeking a temporary restraining order and preliminary injunction halting planting of the crop. If granted, the injunction would stop—and, if necessary, remove—the recent plantings of GE sugar beet seedlings intended to produce seed for a 2012 sugar beet crop. The judge said he wanted more briefing on possible remedies and scheduling a hearing for October 22. The plaintiffs have argued that the appropriate remedy is to order the unlawfully crops immediately destroyed.

“Once again, USDA has bypassed environmental review and public comment to cater to industry preferences,” stated Paige Tomaselli, staff attorney for Center for Food Safety. “We cannot allow USDA to abdicate its responsibility to protect public health and the environment.”

Paul Achitoff of Earthjustice, lead counsel for the groups challenging the sugar beets, said, “Both the USDA and the sugar beet industry played fast and loose with the law, hoping to evade effective court review by planting as fast as they could. Such conduct, especially on the part of the government, is outrageous and cannot be tolerated. The illegally planted crops must be removed."

The crop at issue, Roundup Ready sugar beets, was engineered to resist the effects of Monsanto’s Roundup herbicide, which it sells to farmers together with the patented seed. Similar Roundup Ready crops have led to increased use of herbicides, proliferation of herbicide resistant weeds, and contamination of conventional and organic crops. In August, after earlier ruling that USDA had violated the National Environmental Policy Act (NEPA) by approving the Monsanto-engineered biotech crop without first preparing an Environmental Impact Statement (EIS), the court officially “vacated” USDA’s “deregulation” of the crop, making any future planting and sale unlawful until USDA complies with federal law. At the time, USDA had requested that the court delay its ruling, allowing planting to continue pending agency review. The court denied this request, a fact it noted in its decision yesterday.

As a result of Judge White’s August 13, 2010 order, USDA is in the process of preparing an EIS on the impacts of these GE sugar beets (as required under NEPA), which the agency has said it may complete in 2012. Only three weeks after Judge White’s order making further planting unlawful, USDA began issuing permits to seed companies to begin propagating seed for the still-regulated crop. Although USDA and the companies were aware of the plaintiffs’ opposition, they rushed to complete the plantings in the hope of presenting the court with a fait accompli.

USDA and the companies argued this first step alone did not warrant any environmental review.  Judge White rejected this attempt to artificially segment, or piecemeal, the sugar beet planting cycle into phases to avoid the very environmental review the court previously had ordered. The court stated there was “no reasonable basis to support” the government’s assertion that this recent planting was an act independent from the remainder of the planting cycle. The court found no evidence that “the permits had any utility other than enabling the seed companies to take the first step in a multi-step process related to the commercial production of genetically engineered sugar beets.” This, the court held, “goes beyond the supposedly limited plantings at issue.”

Courts have twice rescinded USDA’s approval of biotech crops. The first such crop, Roundup Ready alfalfa, is also illegal to plant, based on the vacating of its deregulation in 2007 pending preparation of an EIS.  Although Monsanto appealed that case all the way to the Supreme Court and the High Court set aside part of the relief granted, the full prohibition on its planting—based on the same initial remedy granted here, the vacatur—remains in place.

This case is Center for Food Safety v. Vilsack, No. C10-04038 JSW (N.D. Cal. 2010).