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International Center for Technology Assessment v. Johanns

February 5, 2007

INTERNATIONAL CENTER FOR TECHNOLOGY ASSESSMENT, ET AL., PLAINTIFFS,
v.
MIKE JOHANNS, SECRETARY, UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL., DEFENDANTS, AND THE SCOTTS COMPANY, DEFENDANT-INTERVENOR.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION

Before the court are the parties' motions for summary judgment [#66, #67, #69] and plaintiffs' motions to strike declarations submitted by defendant The Scotts Miracle-Gro Company ("Scotts") [#73] and by the federal defendants [#72]. Upon consideration of the motions, the oppositions thereto, and the record of the case, the court denies the motions to strike and concludes that the competing motions for summary judgment must be granted in part and denied in part.

I. BACKGROUND

Plaintiff organizations International Center for Technology Assessment ("CTA"), Center for Food Safety ("CFS"), and Klamath Siskiyou Wildlands Center ("Wildlands Center"), along with five individual plaintiffs, bring this action for declaratory and injunctive relief against Mike Johanns, Secretary ("Secretary") of the United States Department of Agriculture ("USDA"), Bobby Acord, Administrator of the USDA Animal Plant Health and Inspection Service ("APHIS"), and Dr. Alan Tasker, the Noxious Weed Program Manager at APHIS, in their official capacities.*fn1 Plaintiffs' second amended complaint challenges defendants' denial of a petition submitted by plaintiffs CTA and CFS to have certain genetically engineered ("GE") varieties of grasses listed as noxious weeds under the Plant Protection Act ("PPA"), 7 U.S.C. § 7701 et seq. The complaint also alleges that defendants violated the PPA, the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., when they permitted a variety of field tests of GE creeping bentgrass to be conducted across the country, without (1) adequately determining whether GE creeping bentgrass was a "plant pest," pursuant to PPA implementing regulations, or (2) preparing an Environmental Impact Statement ("EIS") or Environmental Assessment ("EA"), pursuant to NEPA. Scotts, which conducted many of the field tests at issue and has petitioned APHIS to deregulate certain GE grasses at issue here, has intervened as a defendant.

Central to this case are two species of turfgrasses: creeping bentgrass (Agrostis stolonifera) and Kentucky bluegrass (Poa pratensis). Creeping bentgrass is a "fast-growing perennial [grass] species which is biologically and ecologically very variable, adaptable, and robust." AR 359. It spreads both vegetatively and via "reproduction by stolons (horizontal above-ground stems or runners), wind-pollinated flowers, and tiny seeds dispersed by wind, water and animals." Ibid. Used commonly for lawns and athletic fields, it is also a popular species for use on golf course greens and fairways. AR 103. Kentucky bluegrass, also a robust perennial, is primarily used for lawns, and is characterized by a recognizable boat-shaped leaf tip. AR 66--67. Both species have been categorized by a variety of organizations, including a consortium of ten federal agencies and 145 non-federal cooperators, as either invasive weeds or, more colorfully, as "alien plant invaders." AR 53, 60, 169; 2nd Am. Compl. ¶ 34.

This controversy arises in part from field tests of a genetically engineered strain of creeping bentgrass. In recent years, researchers and the grass industry have been developing GE species which are resistant to glyphosate, the active ingredient in the popular herbicide Roundup. Such new grasses, which have not been approved for commercial use by APHIS (the federal agency with oversight responsibility over turfgrasses), would have obvious market appeal: lawns and golf courses planted with them could be managed using glyphosate without harm occurring to the grass itself. In contrast, managers applying Roundup to areas planted with currently-available non-glyphosate-resistant turfgrasses risk killing both the grass and the unwanted weeds.

As part of its efforts to develop these "Roundup-ready" grasses, defendant-intervenor Scotts applied to APHIS for a series of open air field test permits between May 2002 and July 2003.*fn2 These tests, once approved, were conducted on sites across the nation. The largest test conducted during this period (permit number 02-198-01N) took place near the town of Madras, Oregon, and covered approximately 421 acres. The second-largest test (permit number 03-090-07N) was conducted in Canyon County, Idaho, and covered approximately 23 acres.*fn3

Plaintiffs challenge these permit decisions on grounds that (1) APHIS failed to adequately consider whether glyphosate-resistant creeping bentgrass is a "plant pest," as defined in the implementing regulations of the PPA, and that (2) APHIS failed to correctly determine the significance of the potential environmental impacts associated with the field trials, in violation of NEPA.

Scotts submitted a petition to APHIS to deregulate glyphosate-resistant creeping bentgrass ("GTCB") in May 2002. 2nd Am. Compl. ¶ 14. That petition was withdrawn in October 2002 and re-submitted in April 2003. Ibid. The petition is pending, and APHIS is conducting an EIS regarding the petition, pursuant to NEPA. Environmental Impact Statement; Petition for Deregulation of Genetically Engineered Glyphosate-Tolerant Creeping Bentgrass, 69 Fed. Reg. 57,257 (Sept. 24, 2004). This petition and the expected EIS are not at issue in this litigation.

The effort to develop Roundup-ready grasses has elicited considerable concern from environmental groups, land managers, federal agencies, and other organizations and individuals. AR 76--82, 161--85, 187--94, 1687, 1693, Suppl. Docs. A--G. The concerns these groups have raised include worries about gene flow (a process in which a genetic mutation (here, glyphosate tolerance) appearing in a GE plant spreads through reproduction with sexually compatible wild relatives and then persists in the environment), enhanced weediness (creeping bentgrass is considered by many to be a problematic weed that poses management concerns, which will only increase if the species cannot be managed with Roundup), and an increase in the use of other herbicides more toxic than glyphosate.

After Scotts' first petition, plaintiffs CTA and CFS filed their own petition requesting that APHIS place GTCB and GE glyphosate tolerant Kentucky bluegrass on the Federal Noxious Weed List. AR 161--85; see also 7 U.S.C. §§ 7712(f)(1), (f)(2) (granting authority to create a noxious weed list and providing that "[a]ny person may petition the Secretary to add a plant species" to the list). Had the petition been granted, it would have enabled defendants to prohibit or restrict movement of these plants to prevent their introduction into the United States and their use in interstate commerce. Id. § 7712(f)(1). APHIS, however, denied the petition. By this lawsuit, CTA and CFS challenge both that denial and the aforementioned field test permits.

II. ANALYSIS

A. Standing

Before reaching the merits of plaintiffs' claims, the court must determine whether plaintiffs have standing. The party invoking federal jurisdiction bears the burden of demonstrating standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). To meet this burden under Article III, a plaintiff must establish (1) that she has suffered an "injury in fact;" (2) that the injury is "fairly . . . trace[able] to the challenged action of the defendant;" and (3) that the injury will "likely" be "redressed by a favorable decision." Id. at 560--61 (citations and internal quotation marks omitted); see also Animal Legal Defense Fund, Inc. v. Glickman, 154 F.3d 426, 431 (D.C. Cir. 1998) (en banc).

The only criterion at issue here is whether plaintiffs have suffered injury in fact. To qualify as an injury in fact, the alleged harm must be concrete, particularized, and actual or imminent. Defenders of Wildlife, 504 U.S. at 560. Additionally, where an organization brings claims on behalf of its members, the organization must also demonstrate that at least one of its members "would have standing to sue in [her] own right, [that] the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 181 (2000). Finally, where a plaintiff's alleged injuries are probabilistic or constitute "increases in risk," the likelihood of the injuries occurring must be substantially probable, such that the risk is "non-trivial" or "sufficient to take a suit out of the category of the hypothetical." Natural Resources Defense Council v. EPA, 464 F.3d 1, 6 (D.C. Cir. 2006) ("NRDC II").

1. The Field Tests

The court turns first to plaintiffs' claims regarding the Scotts bentgrass field tests. These claims are brought by the individual plaintiffs and by the organizational plaintiffs on behalf of their members. The interests at stake are germane to the organizations' purposes and the claims asserted and relief requested do not require the participation of the organizations' members. The standing question, therefore, turns on whether the individuals, either standing alone or as members of the plaintiff organizations, have adequately demonstrated standing. Though these tests occurred in various locations across the nation, plaintiffs only provide affidavit evidence alleging injury resulting from the field tests in Jefferson County, Oregon, Canyon County, Idaho, and Richmond, Virginia. See Sierra Club v. EPA, 292 F.3d 895, 899 (D.C. Cir. 2002) (at summary judgment, a plaintiff "must support each element of its claim to standing 'by affidavit or other evidence'" (quoting Defenders of Wildlife, 504 U.S. at 561)).*fn4 Defendants argue that even as to the tests in these locations, the evidence submitted fails to establish that plaintiffs have suffered or will suffer injury in fact from the tests.*fn5

a. The Oregon Tests

Between 2002 and 2005, Scotts conducted a large field test of GTCB in a 11,000 acre control area established by the Oregon Department of Agriculture. Bodey Decl. ¶ 15. The control area is situated immediately northwest of the town of Madras and within a few miles of the Crooked River National Grassland (the office of the Crooked River National Grassland is located in the town of Madras). Third Gurian-Sherman Decl., Fig. 1; Katroscik Decl. ¶ 3. The Deschutes River runs in a northeasterly direction along the control district's northwest edge. Notification 02-198-01N, which was acknowledged (i.e., approved) by APHIS, authorized the planting of 600 acres of GTCB in the district, and Scotts planted approximately 421 acres of GTCB under this notification. Bodey Decl. ¶¶ 15--17.

In 2004, EPA's National Health and Environmental Effects Research Laboratory published a study regarding the potential escape and establishment outside the Control District of the glyphosate-tolerant gene appearing in the GTCB planted by Scotts. Pls.' Mot. for Prelim. Inj., Decl. Mendelson, Ex. 1; Def.-Intervenor's Opp'n and Mot. for Summ. J., Ex. 1 (the "Watrud Study"). That study documented significant gene flow from the control district to surrounding native and "sentinel" (deliberately planted, for purposes of the study) bentgrass and other plants. It recommended that "studies should continue over the next few years within resident plant populations to monitor" GTCB growth and the "potential effects" thereof on "ecological fitness of progeny and plant community structure in various, largely nonagronomic habitats." Id. at 5.

Plaintiffs submit the following evidence regarding the alleged injuries they either fear or have suffered from the Oregon tests: Lesley Adams, a member of plaintiff Wildlands Center, resides in Bend, Oregon, and recreates in areas near the Madras control district, including areas in and around the Crooked River National Grassland and the Deschutes River. Decl. of Lesley Adams ¶¶ 2--4. Aware of the Watrud Study, Adams alleges that the escape and potential establishment of GTCB threatens her recreational and aesthetic interests in viewing native plant species, which species are themselves threatened by the possible invasion of and hybridization with GTCB. Id. at 5--6. Plaintiff Joe Katroscik, also a Bend resident, recreates in areas around Bend, Prineville, and Madras, Oregon, including the Crooked River National Grassland, which he visits "regularly." Katroscik Decl. ¶¶ 3--5. He is also concerned about GTCB establishment and potential GTCB invasion of and hybridization with his lawn in Bend. Id. at ¶ 7. Finally, Shannon Clery, another member of Wildlands Center, is a field botanist who works in central and southern Oregon. Clery Decl. ¶ 2. She recreates and leads educational trips in national forests and public lands throughout Oregon, and she alleges injury both to her recreational and occupational interests arising from the threat of GTCB invasion and establishment outside the Control District. Id. ¶¶ 3--5.

Defendants raise a number of challenges to the Oregon plaintiffs' standing. Most prominently, defendants argue that the risk that the plaintiffs' alleged injuries will actually occur are so improbable that the requirement of actual, imminent injury has not been met. Scotts in particular provides voluminous statistical evidence and calculations regarding the likelihood of GTCB establishment outside the Control District in the "areas of concern" identified by plaintiffs (e.g., the Deschutes River, Crooked River National Grassland, Madras, Prineville, Bend, the Ochoco Mountains, Newberry Crater National Volcanic Monument, and plaintiff Katroscik's lawn), for the purpose of showing that the likelihood the plaintiffs will be harmed by the sight of GTCB in the areas of concern is minuscule.

(1) Applicable Standards

While evidence regarding the likelihood of GTCB establishment in the areas of concern is crucial to the standing inquiry, Scotts' arguments are misleading in one central respect: for injury to plaintiffs' aesthetic interests to occur, it is not essential that plaintiffs actually encounter a GTCB plant. To the contrary, the mere "desire to use or observe [a plant] species, even for purely esthetic purposes, is undeniably a cognizable interest for purposes of standing." Defenders of Wildlife, 504 U.S. at 562--63 (emphasis added). Thus, where plaintiffs "aver that they use the affected area and are persons 'for whom the aesthetic and recreational values of the area will be lessened' by the challenged activity," adequate injury has been shown. Laidlaw Envtl. Servs., 528 U.S. at 183 (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)). Accordingly, whether standing has been shown here (i.e., whether the aesthetic and recreational values of the areas of concern here have been or will be lessened by the effects of the field trials) depends on some, but not all, of the facts about which the parties vigorously debate. The most important consideration is whether GTCB establishment and/or hybridization with native plants in the areas of plaintiffs' interest is ...


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