By James C. Webster

© Copyright Agri-Pulse Communications, Inc.

WASHINGTON, Feb. 27 – A three-judge panel of the Ninth Circuit Court of Appeals in San Francisco Friday overturned a preliminary injunction that mandated destruction of biotech sugar beets planted under USDA permits. It ruled that the challengers “have failed to demonstrate irreparable harm” from allowing stecklings, or seedlings that the court described as “juvenile sugar beets,” to be grown.

“Plaintiffs give us little reason not to defer to APHIS’s technical expertise and judgments on this score,” Judge Sidney R. Thomas, a Clinton appointee, wrote in the 20-page opinion for the court. Although the case is what the judge calls “a thin slice of a larger litigation,” it is a major setback for the coalition of biotechnology critics and organic activists that has delayed but so far not prevented the rapid adoption of transgenic plant technology in U.S. agriculture.

The ruling shredded the exaggerated claims of attorneys for Earthjustice and the Center for Food Safety, who have put roadblocks in the way of farmers who wanted to plant biotech alfalfa and sugar beets and run up large legal costs for USDA, the Justice Department and the cooperatives who helped Monsanto develop the alfalfa and have been processing and marketing the beets.

Thomas wrote that the challengers failed to show that the stecklings “present a possibility, much less a likelihood, of genetic contamination or other irreparable harm” but instead the “undisputed evidence indicates that the stecklings pose a negligible risk.” The permits prohibit flowering or pollination, he said. APHIS has permitted more than 100 confined field releases of Roundup Ready sugar beets with no known “loss of confinement,” Thomas wrote. The Supreme Court’s decision last year in a related Monsanto case warned against granting injunctions where APHIS’s action is “sufficiently limited” and where “the risk of gene flow to [plaintiffs’] crops could be virtually nonexistent,” he said, and the permit process appears to follow the high court dictum.

The appeals court said that U.S. District Judge Jeffery White erred in finding that the stecklings posed “an imminent risk of environmental harm” because the damage claims “hinge entirely on later stages of Roundup Ready sugar beet planting and production. “Their alleged irreparable harms hinged on future APHIS decisions, and nothing prevented plaintiffs from filing a new legal challenge if and when those decisions were made,” Thomas wrote. “The alleged irreparable harms are little more than an expression that ‘life finds a way’,” he said, adding that “an invocation to chaos theory is not sufficient to justify a preliminary injunction.”

The ruling does not change the 2008 suit that persuaded the lower court to require APHIS to do an environmental impact statement rather than a less exhaustive environmental assessment before clearing the beets for commercial use. USDA announced Feb. 4 that it would allow planting to resume under controlled conditions. “The decision will be immediately challenged in court by a coalition of farmers and conservation groups: the Center for Food Safety, Organic Seed Alliance, High Mowing Organic Seeds and the Sierra Club,” the coalition said.

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