Center for Food Safety v. Vilsack

The United States Department of Agriculture’s deregulation of Roundup Ready Alfalfa (“RRA”) was proper because the agency was correct in determining that RRA was not a “plant pest” under the Plant Protection Act, and therefore was not required to consult the Fish and Wildlife Service regarding RRA’s effects on endangered and threatened species.

The United States Department of Agriculture (“USDA”) regulates Roundup Ready Alfalfa (“RRA”), a genetically “modified” plant that is resistant to an herbicide known as Roundup. Because RRA is resistant to Roundup, farmers can control weeds without harming the alfalfa plants. Environmental groups have been concerned with RRA’s possible adverse effects on the environment. The USDA’s Animal Plant and Health Inspection Service (“APHIS”) deregulated RRA “on the ground that RRA was not a ‘plant pest’” under the Plant Protection Act (“PPA”) because RRA’s alleged harms did not “constitute plant disease, injury, or damage,” which the statute requires. Various environmental interest groups and farmer organizations (collectively, “Plaintiffs”) sought review of APHIS’s deregulation. The district court upheld the deregulation, holding that the deregulation did not violate the Endangered Species Act (“ESA”) or the National Environmental Policy Act (“NEPA”). Plaintiffs argued that the deregulation was improper for three reasons. First, APHIS violated the PPA and the Administrative Procedure Act (“APA”) by concluding that “RRA was not a plant pest” and for failing to consider RRA as a “noxious weed.” Second, APHIS violated the ESA by failing to consult the Fish and Wildlife Service (“FWS”) about possible effects on endangered and threatened species. Third, APHIS violated the NEPA when it did not consider partial deregulation. The Ninth Circuit held that neither the PPA nor the APA regulated the Plaintiffs’ complaints, and therefore APHIS was correct in concluding that RRA was not a plant pest. Once APHIS concluded that RRA was not a plant pest, APHIS no longer had jurisdiction to continue regulation of RRA, which removed the need for APHIS to consult the FWS under the ESA. Furthermore, APHIS was not obligated to look at reasonable alternatives to unconditional regulation, such as partial deregulation, as the agency had no jurisdiction to adopt the alternative. AFFIRMED.