ELR Citation: 43 ELR 20111
No(s). 12-15052 (9th Cir. May 17, 2013)

The Ninth Circuit upheld the Animal Plant and Health Inspection Service's (APHIS') unconditional deregulation of Roundup Ready Alfalfa (RRA), a genetically modified plant that allows farmers to control weeds through herbicide application without harming the alfalfa plant. APHIS correctly concluded that RRA was not a "plant pest" under the Plant Protection Act (PPA). Environmental groups and farmers organizations claimed that RRA would cross-pollinate with and alter the genetic structure of conventional alfalfa plants, a process referred to as transgenic contamination, which would harm the multi-billion dollar organic food industry. They also feared that RRA's deregulation would lead to glyphosate-resistant weeds. But the dangers of transgenic contamination and increased glyphosate usage are not plant pest harms under the PPA. The transgenic contamination of conventional alfalfa and increased herbicide use may well be adverse environmental and economic effects, but they do not constitute plant disease, injury, or damage, which are the harms that the PPA requires. Accordingly, once the agency concluded that RRA was not a plant pest, it no longer had jurisdiction to continue regulating the plant. This, in turn, obviated the need for the agency to consult with FWS under the ESA and to consider alternatives to unconditional deregulation under NEPA. Nor did APHIS violate the PPA by not considering, sua sponte, whether RRA was a noxious weed.