Monsanto Co. v. Geertson Seed Farms ( 2010 )

(Slip Opinion) OCTOBER TERM, 2009 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MONSANTO CO. ET AL. v. GEERTSON SEED FARMS
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 09–475. Argued April 27, 2010—Decided June 21, 2010
The Plant Protection Act (PPA) provides that the Secretary of the De
partment of Agriculture may issue regulations “to prevent the intro
duction of plant pests into the United States or the dissemination of
plant pests within the United States.” 7 U. S. C. §7711(a). Pursuant
to that grant of authority, the Animal and Plant Health Inspection
Service (APHIS) promulgated regulations that presume genetically
engineered plants to be “plant pests”—and thus “regulated articles”
under the PPA—until APHIS determines otherwise. However, any
person may petition APHIS for a determination that a regulated arti
cle does not present a plant pest risk and therefore should not be sub
ject to the applicable regulations. APHIS may grant such a petition
in whole or in part.
In determining whether to grant nonregulated status to a geneti
cally engineered plant variety, APHIS must comply with the Na
tional Environmental Policy Act of 1969 (NEPA), which requires fed
eral agencies “to the fullest extent possible” to prepare a detailed
environmental impact statement (EIS) for “every . . . major Federal
actio[n] significantly affecting the quality of the human environ
ment.” 42 U. S. C. §4332(2)(C). The agency need not complete an
EIS if it finds, based on a shorter statement known as an environ
mental assessment (EA), that the proposed action will not have a
significant environmental impact.
This case involves a challenge to APHIS’s decision to approve the
unconditional deregulation of Roundup Ready Alfalfa (RRA), a vari
ety of alfalfa that has been genetically engineered to tolerate the her
bicide Roundup. Petitioners are the owner and the licensee of the in
tellectual property rights to RRA. In response to petitioners’
2 MONSANTO CO. v. GEERTSON SEED FARMS
Syllabus
deregulation request, APHIS prepared a draft EA and solicited public
comments on its proposed course of action. Based on its EA and the
comments submitted, the agency determined that the introduction of
RRA would not have any significant adverse impact on the environ
ment. Accordingly, APHIS decided to deregulate RRA uncondition
ally and without preparing an EIS. Respondents, conventional al
falfa growers and environmental groups, filed this action challenging
that decision on the ground that it violated NEPA and other federal
laws. The District Court held, inter alia, that APHIS violated NEPA
when it deregulated RRA without first completing a detailed EIS. To
remedy that violation, the court vacated the agency’s decision com
pletely deregulating RRA; enjoined APHIS from deregulating RRA,
in whole or in part, pending completion of the EIS; and entered a na
tionwide permanent injunction prohibiting almost all future planting
of RRA during the pendency of the EIS process. Petitioners and the
Government appealed, challenging the scope of the relief granted but
not disputing that APHIS’s deregulation decision violated NEPA.
The Ninth Circuit affirmed, concluding, among other things, that the
District Court had not abused its discretion in rejecting APHIS’s pro
posed mitigation measures in favor of a broader injunction.
Held:
1. Respondents have standing to seek injunctive relief, and peti
tioners have standing to seek this Court’s review of the Ninth Cir
cuit’s judgment affirming the entry of such relief. Pp. 7–14.
(a) Petitioners have constitutional standing to seek review here.
Article III standing requires an injury that is (i) concrete, particular
ized, and actual or imminent, (ii) fairly traceable to the challenged
action, and (iii) redressable by a favorable ruling. See Horne v. Flo
res, 557 U. S. ___, ___. Petitioners satisfy all three criteria. Petition
ers are injured by their inability to sell or license RRA to prospective
customers until APHIS completes the EIS. Because that injury is
caused by the very remedial order that petitioners challenge on ap
peal, it would be redressed by a favorable ruling from this Court. Re
spondents nevertheless contend that petitioners lack standing be
cause their complained-of injury is independently caused by a part of
the District Court’s order that petitioners failed to challenge, the va
catur of APHIS’s deregulation decision. That argument fails for two
independent reasons. First, one of the main disputes between the
parties throughout this litigation has been whether the District
Court should have adopted APHIS’s proposed judgment, which would
have replaced the vacated deregulation decision with an order ex
pressly authorizing the continued sale and planting of RRA. Accord
ingly, if the District Court had adopted APHIS’s proposed judgment,
there would still be authority for the continued sale of RRA notwith
Cite as: 561 U. S. ____ (2010) 3
Syllabus
standing the District Court’s vacatur, because there would, in effect,
be a new deregulation decision. Second, petitioners in any case have
standing to challenge the part of the District Court’s order enjoining
a partial deregulation. Respondents focus their argument on the part
of the judgment that enjoins planting, but the judgment also states
that before granting the deregulation petition, even in part, the
agency must prepare an EIS. That part of the judgment inflicts an
injury not also caused by the vacatur. Pp. 7–11.
(b) Respondents have constitutional standing to seek injunctive
relief from the complete deregulation order at issue here. The Court
disagrees with petitioners’ argument that respondents have failed to
show that any of them is likely to suffer a constitutionally cognizable
injury absent injunctive relief. The District Court found that respon
dent farmers had established a reasonable probability that their con
ventional alfalfa crops would be infected with the engineered
Roundup Ready gene if RRA were completely deregulated. A sub
stantial risk of such gene flow injures respondents in several ways
that are sufficiently concrete to satisfy the injury-in-fact prong of the
constitutional standing analysis. Moreover, those harms are readily
attributable to APHIS’s deregulation decision, which gives rise to a
significant risk of gene flow to non-genetically-engineered alfalfa va
rieties. Finally, a judicial order prohibiting the planting or deregula
tion of all or some genetically engineered alfalfa would redress re
spondents’ injuries by eliminating or minimizing the risk of gene flow
to their crops. Pp. 11–14.
2. The District Court abused its discretion in enjoining APHIS from
effecting a partial deregulation and in prohibiting the planting of
RRA pending the agency’s completion of its detailed environmental
review. Pp. 14–22.
(a) Because petitioners and the Government do not argue other
wise, the Court assumes without deciding that the District Court
acted lawfully in vacating the agency’s decision to completely deregu
late RRA. The Court therefore addresses only the injunction prohib
iting APHIS from deregulating RRA pending completion of the EIS,
and the nationwide injunction prohibiting almost all RRA planting
during the pendency of the EIS process. P. 14.
(b) Before a court may grant a permanent injunction, the plain
tiff must satisfy a four-factor test, demonstrating: “(1) that it has suf
fered an irreparable injury; (2) that remedies available at law, such
as monetary damages, are inadequate to compensate for that injury;
(3) that, considering the balance of hardships between the plaintiff
and defendant, a remedy in equity is warranted; and (4) that the pub
lic interest would not be disserved by a permanent injunction.” eBay
Inc. v. MercExchange, L. L. C., 547 U. S. 388, 391. This test fully ap
4 MONSANTO CO. v. GEERTSON SEED FARMS
Syllabus
plies in NEPA cases. See Winter v. Natural Resources Defense Coun
cil, Inc., 555 U. S. ___, ___. Thus, the existence of a NEPA violation
does not create a presumption that injunctive relief is available and
should be granted absent unusual circumstances. Pp. 15–16.
(c) None of the four factors supports the District Court’s order en
joining APHIS from partially deregulating RRA during the pendency
of the EIS process. Most importantly, respondents cannot show that
they will suffer irreparable injury if APHIS is allowed to proceed with
any partial deregulation, for at least two reasons. First, if and when
APHIS pursues a partial deregulation that arguably runs afoul of
NEPA, respondents may file a new suit challenging such action and
seeking appropriate preliminary relief. Accordingly, a permanent in
junction is not now needed to guard against any present or imminent
risk of likely irreparable harm. Second, a partial deregulation need
not cause respondents any injury at all; if its scope is sufficiently lim
ited, the risk of gene flow could be virtually nonexistent. Indeed, the
broad injunction entered below essentially pre-empts the very proce
dure by which APHIS could determine, independently of the pending
EIS process for assessing the effects of a complete deregulation, that
a limited deregulation would not pose any appreciable risk of envi
ronmental harm. Pp. 16–23.
(d) The District Court also erred in entering the nationwide in
junction against planting RRA, for two independent reasons. First,
because it was inappropriate for the District Court to foreclose even
the possibility of a partial and temporary deregulation, it follows that
it was inappropriate to enjoin planting in accordance with such a de
regulation decision. Second, an injunction is a drastic and extraordi
nary remedy, which should not be granted as a matter of course. See,
e.g., Weinberger v. Romero-Barcelo, 456 U. S. 305, 312. If, as respon
dents now concede, a less drastic remedy (such as partial or complete
vacatur of APHIS’s deregulation decision) was sufficient to redress
their injury, no recourse to the additional and extraordinary relief of
an injunction was warranted. Pp. 23–24.
(e) Given the District Court’s errors, this Court need not address
whether injunctive relief of some kind was available to respondents
on the record below. Pp. 24–25.
570 F. 3d 1130, reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and SCALIA, KENNEDY, THOMAS, GINSBURG, and SOTOMAYOR, JJ., joined.
STEVENS, J., filed a dissenting opinion. BREYER, J., took no part in the
consideration or decision of the case.
Cite as: 561 U. S. ____ (2010) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–475
_________________
MONSANTO COMPANY, ET AL., PETITIONERS v.
GEERTSON SEED FARMS ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 21, 2010]
JUSTICE ALITO delivered the opinion of the Court.
This case arises out of a decision by the Animal and
Plant Health Inspection Service (APHIS) to deregulate a
variety of genetically engineered alfalfa. The District
Court held that APHIS violated the National Environ­
mental Policy Act of 1969 (NEPA), 83 Stat. 852, 42
U. S. C. §4321 et seq., by issuing its deregulation deci­
sion without first completing a detailed assessment of
the environmental consequences of its proposed course of
action. To remedy that violation, the District Court
vacated the agency’s decision completely deregulating
the alfalfa variety in question; ordered APHIS not to act
on the deregulation petition in whole or in part until it
had completed a detailed environmental review; and
enjoined almost all future planting of the genetically
engineered alfalfa pending the completion of that review.
The Court of Appeals affirmed the District Court’s entry
of permanent injunctive relief. The main issue now in
dispute concerns the breadth of that relief. For the
reasons set forth below, we reverse and remand for
further proceedings.
2 MONSANTO CO. v. GEERTSON SEED FARMS
Opinion of the Court
I
A
The Plant Protection Act (PPA), 114 Stat. 438, 7 U. S. C.
§7701 et seq., provides that the Secretary of the Depart­
ment of Agriculture (USDA) may issue regulations “to
prevent the introduction of plant pests into the United
States or the dissemination of plant pests within the
United States.” §7711(a). The Secretary has delegated
that authority to APHIS, a division of the USDA. 7 CFR
§§2.22(a), 2.80(a)(36) (2010). Acting pursuant to that
delegation, APHIS has promulgated regulations governing
“the introduction of organisms and products altered or
produced through genetic engineering that are plant pests
or are believed to be plant pests.” See §340.0(a)(2) and
n. 1. Under those regulations, certain genetically engi­
neered plants are presumed to be “plant pests”—and thus
“regulated articles” under the PPA—until APHIS deter­
mines otherwise. See ibid.; §§340.1, 340.2, 340.6; see also
App. 183. However, any person may petition APHIS for a
determination that a regulated article does not present a
plant pest risk and therefore should not be subject to the
applicable regulations. 7 U. S. C. §7711(c)(2); 7 CFR
§340.6. APHIS may grant such a petition in whole or in
part. §340.6(d)(3).
In deciding whether to grant nonregulated status to a
genetically engineered plant variety, APHIS must comply
with NEPA, which requires federal agencies “to the fullest
extent possible” to prepare an environmental impact
statement (EIS) for “every recommendation or report on
proposals for legislation and other major Federal actio[n]
significantly affecting the quality of the human environ­
ment.” 42 U. S. C. §4332(2)(C). The statutory text
“speaks solely in terms of proposed actions; it does not
require an agency to consider the possible environmental
impacts of less imminent actions when preparing the
impact statement on proposed actions.” Kleppe v. Sierra
Cite as: 561 U. S. ____ (2010) 3
Opinion of the Court
Club, 427 U. S. 390, 410, n. 20 (1976).
An agency need not complete an EIS for a particular
proposal if it finds, on the basis of a shorter “environ­
mental assessment” (EA), that the proposed action will not
have a significant impact on the environment. 40 CFR
§§1508.9(a), 1508.13 (2009). Even if a particular agency
proposal requires an EIS, applicable regulations allow the
agency to take at least some action in furtherance of that
proposal while the EIS is being prepared. See §1506.1(a)
(“no action concerning the proposal shall be taken which
would: (1) Have an adverse environmental impact; or (2)
Limit the choice of reasonable alternatives”); §1506.1(c)
(“While work on a required program environmental impact
statement is in progress and the action is not covered by
an existing program statement, agencies shall not under­
take in the interim any major Federal action covered by
the program which may significantly affect the quality of
the human environment unless such action” satisfies
certain requirements).
B
This case involves Roundup Ready Alfalfa (RRA), a kind
of alfalfa crop that has been genetically engineered to be
tolerant of glyphosate, the active ingredient of the herbi­
cide Roundup. Petitioner Monsanto Company (Monsanto)
owns the intellectual property rights to RRA. Monsanto
licenses those rights to co-petitioner Forage Genetics
International (FGI), which is the exclusive developer of
RRA seed.
APHIS initially classified RRA as a regulated article,
but in 2004 petitioners sought nonregulated status for two
strains of RRA. In response, APHIS prepared a draft EA
assessing the likely environmental impact of the requested
deregulation. It then published a notice in the Federal
Register advising the public of the deregulation petition
and soliciting public comments on its draft EA. After
4 MONSANTO CO. v. GEERTSON SEED FARMS
Opinion of the Court
considering the hundreds of public comments that it re­
ceived, APHIS issued a Finding of No Significant Impact
and decided to deregulate RRA unconditionally and with­
out preparing an EIS. Prior to this decision, APHIS had
authorized almost 300 field trials of RRA conducted over a
period of eight years. App. 348.
Approximately eight months after APHIS granted RRA
nonregulated status, respondents (two conventional alfalfa
seed farms and environmental groups concerned with food
safety) filed this action against the Secretary of Agricul­
ture and certain other officials in Federal District Court,
challenging APHIS’s decision to completely deregulate
RRA. Their complaint alleged violations of NEPA, the
Endangered Species Act of 1973 (ESA), 87 Stat. 884, 16
U. S. C. §1531 et seq., and the PPA. Respondents did not
seek preliminary injunctive relief pending resolution of
those claims. Hence, RRA enjoyed nonregulated status for
approximately two years. During that period, more than
3,000 farmers in 48 States planted an estimated 220,000
acres of RRA. App. 350.
In resolving respondents’ NEPA claim, the District
Court accepted APHIS’s determination that RRA does not
have any harmful health effects on humans or livestock.
App. to Pet. for Cert. 43a; accord, id., at 45a. Neverthe­
less, the District Court held that APHIS violated NEPA by
deregulating RRA without first preparing an EIS. In
particular, the court found that APHIS’s EA failed to
answer substantial questions concerning two broad conse­
quences of its proposed action: first, the extent to which
complete deregulation would lead to the transmission of
the gene conferring glyphosate tolerance from RRA to
organic and conventional alfalfa; and, second, the extent to
which the introduction of RRA would contribute to the
development of Roundup-resistant weeds. Id., at 52a. In
light of its determination that the deregulation decision
ran afoul of NEPA, the District Court dismissed without
Cite as: 561 U. S. ____ (2010) 5
Opinion of the Court
prejudice respondents’ claims under the ESA and PPA.
After these rulings, the District Court granted petition­
ers permission to intervene in the remedial phase of the
lawsuit. The court then asked the parties to submit pro­
posed judgments embodying their preferred means of
remedying the NEPA violation. APHIS’s proposed judg­
ment would have ordered the agency to prepare an EIS,
vacated the agency’s deregulation decision, and replaced
that decision with the terms of the judgment itself. Id., at
184a (proposed judgment providing that “[the federal]
defendants’ [June 14,] 2005 Determination of Nonregu­
lated Status for Alfalfa Genetically Engineered for Toler­
ance to the Herbicide Glyphosate is hereby vacated and
replaced by the terms of this judgment” (emphasis added)).
The terms of the proposed judgment, in turn, would have
permitted the continued planting of RRA pending comple­
tion of the EIS, subject to six restrictions. Those restric­
tions included, among other things, mandatory isolation
distances between RRA and non-genetically-engineered
alfalfa fields in order to mitigate the risk of gene flow;
mandatory harvesting conditions; a requirement that
planting and harvesting equipment that had been in
contact with RRA be cleaned prior to any use with conven­
tional or organic alfalfa; identification and handling re­
quirements for RRA seed; and a requirement that all RRA
seed producers and hay growers be under contract with
either Monsanto or FGI and that their contracts require
compliance with the other limitations set out in the pro­
posed judgment.
The District Court rejected APHIS’s proposed judgment.
In its preliminary injunction, the District Court prohibited
almost all future planting of RRA pending APHIS’s com­
pletion of the required EIS. But in order to minimize the
harm to farmers who had relied on APHIS’s deregulation
decision, the court expressly allowed those who had al­
ready purchased RRA to plant their seeds until March 30,
6 MONSANTO CO. v. GEERTSON SEED FARMS
Opinion of the Court
2007. Id., at 58a. In its subsequently entered permanent
injunction and judgment, the court (1) vacated APHIS’s
deregulation decision; (2) ordered APHIS to prepare an
EIS before it made any decision on Monsanto’s deregula­
tion petition; (3) enjoined the planting of any RRA in the
United States after March 30, 2007, pending APHIS’s
completion of the required EIS; and (4) imposed certain
conditions (suggested by APHIS) on the handling and
identification of already-planted RRA. Id., at 79a, 109a.
The District Court denied petitioners’ request for an evi­
dentiary hearing.
The Government, Monsanto, and FGI appealed, chal­
lenging the scope of the relief granted but not disputing
the existence of a NEPA violation. See Geertson Seed
Farms v. Johanns, 570 F. 3d 1130, 1136 (2009). A divided
panel of the Court of Appeals for the Ninth Circuit af­
firmed. Based on its review of the record, the panel first
concluded that the District Court had “recognized that an
injunction does not ‘automatically issue’ when a NEPA
violation is found” and had instead based its issuance of
injunctive relief on the four-factor test traditionally used
for that purpose. Id., at 1137. The panel held that the
District Court had not committed clear error in making
any of the subsidiary factual findings on which its assess­
ment of the four relevant factors was based. And the
panel rejected the claim that the District Court had not
given sufficient deference to APHIS’s expertise concerning
the likely effects of allowing continued planting of RRA on
a limited basis. In the panel’s view, APHIS’s proposed
interim measures would have perpetuated a system that
had been found by the District Court to have caused envi­
ronmental harm in the past. Id., at 1139. Hence, the
panel concluded that the District Court had not abused its
discretion “in choosing to reject APHIS’s proposed mitiga­
tion measures in favor of a broader injunction to prevent
more irreparable harm from occurring.” Ibid.Cite as: 561 U. S. ____ (2010) 7
Opinion of the Court
The panel majority also rejected petitioners’ alternative
argument that the District Court had erred in declining to
hold an evidentiary hearing before entering its permanent
injunction. Writing in dissent, Judge N. Randy Smith
disagreed with that conclusion. In his view, the District
Court was required to conduct an evidentiary hearing
before issuing a permanent injunction unless the facts
were undisputed or the adverse party expressly waived its
right to such a hearing. Neither of those two exceptions,
he found, applied here.
We granted certiorari. 558 U. S. __ (2010).
II
A
At the threshold, respondents contend that petitioners
lack standing to seek our review of the lower court rulings
at issue here. We disagree.
Standing under Article III of the Constitution requires
that an injury be concrete, particularized, and actual or
imminent; fairly traceable to the challenged action; and
redressable by a favorable ruling. Horne v. Flores, 557
U. S. ___, ___ (2009) (slip op., at 8). Petitioners here sat­
isfy all three criteria. Petitioners are injured by their
inability to sell or license RRA to prospective customers
until such time as APHIS completes the required EIS.
Because that injury is caused by the very remedial order
that petitioners challenge on appeal, it would be redressed
by a favorable ruling from this Court.
Respondents do not dispute that petitioners would have
standing to contest the District Court’s permanent injunc­
tion order if they had pursued a different litigation strat­
egy. Instead, respondents argue that the injury of which
petitioners complain is independently caused by a part of
the District Court’s order that petitioners failed to chal­
lenge, namely, the vacatur of APHIS’s deregulation deci­
sion. The practical consequence of the vacatur, respon­
8 MONSANTO CO. v. GEERTSON SEED FARMS
Opinion of the Court
dents contend, was to restore RRA to the status of a regu­
lated article; and, subject to certain exceptions not appli­
cable here, federal regulations ban the growth and sale of
regulated articles. Because petitioners did not specifically
challenge the District Court’s vacatur, respondents reason,
they lack standing to challenge a part of the District
Court’s order (i.e., the injunction) that does not cause
petitioners any injury not also caused by the vacatur. See
Brief for Respondents 19–20.
Respondents’ argument fails for two independent rea­
sons. First, although petitioners did not challenge the
vacatur directly, they adequately preserved their objection
that the vacated deregulation decision should have been
replaced by APHIS’s proposed injunction. Throughout the
remedial phase of this litigation, one of the main disputes
between the parties has been whether the District Court
was required to adopt APHIS’s proposed judgment. See,
e.g., Intervenor-Appellants’ Opening Brief in No. 07–16458
etc. (CA9), p. 59 (urging the Court of Appeals to “vacate
the district court’s judgment and remand this case to the
district court with instructions to enter APHIS’s proposed
relief”); Opening Brief of Federal Defendants-Appellants
in No. 16458 etc. (CA9), pp. 21, 46 (“The blanket injunc­
tion should be narrowed in accordance with APHIS’s
proposal”); see also Tr. of Oral Arg. 6, 25–27, 53–54. That
judgment would have replaced the vacated deregulation
decision with an order expressly allowing continued plant­
ing of RRA subject to certain limited conditions. App. to
Pet. for Cert. 184a (proposed judgment providing that
“[the federal] defendants’ 14 June 2005 Determination of
Nonregulated Status for Alfalfa Genetically Engineered
for Tolerance to the Herbicide Glyphosate is hereby va­
cated and replaced by the terms of this judgment” (empha­
sis added)). Accordingly, if the District Court had adopted
the agency’s suggested remedy, there would still be au­
thority for the continued planting of RRA, because there
Cite as: 561 U. S. ____ (2010) 9
Opinion of the Court
would, in effect, be a new deregulation decision.1
Second, petitioners in any case have standing to chal­
lenge the part of the District Court’s order enjoining par­
tial deregulation. Respondents focus their standing ar­
gument on the part of the judgment enjoining the planting
of RRA, but the judgment also states that “[b]efore grant­
ing Monsanto’s deregulation petition, even in part, the
federal defendants shall prepare an environmental impact
statement.” Id., at 108a (emphasis added); see also id., at
79a (“The Court will enter a final judgment . . . ordering
the government to prepare an EIS before it makes a deci­
sion on Monsanto’s deregulation petition”). As respon­
dents concede, that part of the judgment goes beyond the
vacatur of APHIS’s deregulation decision. See Tr. of Oral
Arg. 37, 46.
At oral argument, respondents contended that the re­
triction on APHIS’s ability to effect a partial deregulation
of RRA does not cause petitioners “an actual or an immi­
nent harm.” Id., at 39–40. In order for a partial deregula­
tion to occur, respondents argued, the case would have to
be remanded to the agency, and APHIS would have to
prepare an EA “that may or may not come out in favor of a
partial deregulation.” Id., at 39. Because petitioners
cannot prove that those two events would happen, respon­
dents contended, the asserted harm caused by the District
Court’s partial deregulation ban is too speculative to
satisfy the actual or imminent injury requirement.
We reject this argument. If the injunction were lifted,
we do not see why the District Court would have to re­
mand the matter to the agency in order for APHIS to
effect a partial deregulation. And even if a remand were
——————
1 We need not decide whether the District Court had the authority to
replace the vacated agency order with an injunction of its own making.
The question whether petitioners are entitled to the relief that they
seek goes to the merits, not to standing.
10 MONSANTO CO. v. GEERTSON SEED FARMS
Opinion of the Court
required, we perceive no basis on which the District Court
could decline to remand the matter to the agency so that it
could determine whether to pursue a partial deregulation
during the pendency of the EIS process.
Nor is any doubt as to whether APHIS would issue a
new EA in favor of a partial deregulation sufficient to
defeat petitioners’ standing. It is undisputed that peti­
tioners have submitted a deregulation petition and that a
partial deregulation of the kind embodied in the agency’s
proposed judgment would afford petitioners much of the
relief that they seek; it is also undisputed that, absent the
District Court’s order, APHIS could attempt to effect such
a partial deregulation pending its completion of the EIS.
See id., at 7–8, 25–27, 38. For purposes of resolving the
particular standing question before us, we need not decide
whether or to what extent a party challenging an injunc­
tion that bars an agency from granting certain relief must
show that the agency would be likely to afford such relief
if it were free to do so. In this case, as is clear from
APHIS’s proposed judgment and from its briefing
throughout the remedial phase of this litigation, the
agency takes the view that a partial deregulation reflect­
ing its proposed limitations is in the public interest. Thus,
there is more than a strong likelihood that APHIS would
partially deregulate RRA were it not for the District
Court’s injunction. The District Court’s elimination of
that likelihood is plainly sufficient to establish a constitu­
tionally cognizable injury. Moreover, as respondents
essentially conceded at oral argument, that injury would
be redressed by a favorable decision here, since “vacating
the current injunction . . . will allow [petitioners] to go
back to the agency, [to] seek a partial deregulation,” even
if the District Court’s vacatur of APHIS’s deregulation
decision is left intact. Id., at 38. We therefore hold that
Cite as: 561 U. S. ____ (2010) 11
Opinion of the Court
petitioners have standing to seek this Court’s review.2
B
We next consider petitioners’ contention that respon­
dents lack standing to seek injunctive relief. See Daim
lerChrysler Corp. v. Cuno, 547 U. S. 332, 352 (2006) (“[A]
plaintiff must demonstrate standing separately for each
form of relief sought” (internal quotation marks omitted)).
Petitioners argue that respondents have failed to show
that any of the named respondents is likely to suffer a
constitutionally cognizable injury absent injunctive relief.
See Brief for Petitioners 40. We disagree.
Respondents include conventional alfalfa farmers.
Emphasizing “the undisputed concentration of alfalfa seed
farms,” the District Court found that those farmers had
“established a ‘reasonable probability’ that their organic
and conventional alfalfa crops will be infected with the
engineered gene” if RRA is completely deregulated. App.
to Pet. for Cert. 50a.3 A substantial risk of gene flow
——————
2 We do not rest “the primary basis for our jurisdiction on the premise
that the District Court enjoined APHIS from partially deregulating
RRA in any sense.” See post, at 7 (STEVENS, J., dissenting). Even if the
District Court’s order prohibiting a partial deregulation applies only to
“the particular partial deregulation order proposed to the court by
APHIS,” see post, at 8, petitioners would still have standing to chal­
lenge that aspect of the order.
3At least one of the respondents in this case specifically alleges that
he owns an alfalfa farm in a prominent seed-growing region and faces a
significant risk of contamination from RRA. See Record, Doc. 62, pp. 1–
2; id., ¶10, at 3–4 (Declaration of Phillip Geertson in Support of Plan­
tiffs’ Motion for Summary Judgment) (“Since alfalfa is pollinated by
honey, bumble and leafcutter bees, the genetic contamination of the
Roundup Ready seed will rapidly spread through the seed growing
regions. Bees have a range of at least two to ten miles, and the alfalfa
seed farms are much more concentrated”). Other declarations in the
record provide further support for the District Court’s conclusion that
the deregulation of RRA poses a significant risk of contamination to
respondents’ crops. See, e.g., id., Doc. 53, ¶9, at 2 (Declaration of Jim
Munsch) (alleging risk of “significant contamination . . . due to the
12 MONSANTO CO. v. GEERTSON SEED FARMS
Opinion of the Court
injures respondents in several ways. For example, re­
spondents represent that, in order to continue marketing
their product to consumers who wish to buy non­
genetically-engineered alfalfa, respondents would have to
conduct testing to find out whether and to what extent
their crops have been contaminated. See, e.g., Record,
Doc. 62, p. 5 (Declaration of Phillip Geertson in Support of
Plantiffs’ Motion for Summary Judgment) (hereinafter
Geertson Declaration) (“Due to the high potential for
contamination, I will need to test my crops for the pres­
ence of genetically engineered alfalfa seed. This testing
will be a new cost to my seed business and we will have to
raise our seed prices to cover these costs, making our
prices less competitive”); id., Doc. 57, p. 4 (Declaration of
Patrick Trask in Support of Plantiff’s Motion for Summary
Judgment) (“To ensure that my seeds are pure, I will need
to test my crops and obtain certification that my seeds are
free of genetically engineered alfalfa”); see also Record,
Doc. 55, p. 2 (“There is zero tolerance for contaminated
seed in the organic market”). Respondents also allege that
the risk of gene flow will cause them to take certain meas­
ures to minimize the likelihood of potential contamination
and to ensure an adequate supply of non-genetically­
engineered alfalfa. See, e.g., Geertson Declaration 3 (not­
ing the “increased cost of alfalfa breeding due to potential
for genetic contamination”); id., at 6 (“Due to the threat of
contamination, I have begun contracting with growers
outside of the United States to ensure that I can supply
genetically pure, conventional alfalfa seed. Finding new
growers has already resulted in increased administrative
——————
compact geographic area of the prime alfalfa seed producing areas and
the fact that pollen is distributed by bees that have large natural range
of activity”); App. ¶8, p. 401 (Declaration of Marc Asumendi) (“Roundup
alfalfa seed fields are currently being planted in all the major alfalfa
seed production areas with little regard to contamination to non-GMO
seed production fields”).
Cite as: 561 U. S. ____ (2010) 13
Opinion of the Court
costs at my seed business”).
Such harms, which respondents will suffer even if their
crops are not actually infected with the Roundup ready
gene, are sufficiently concrete to satisfy the injury-in-fact
prong of the constitutional standing analysis. Those
harms are readily attributable to APHIS’s deregulation
decision, which, as the District Court found, gives rise to a
significant risk of gene flow to non-genetically-engineered
varieties of alfalfa. Finally, a judicial order prohibiting
the growth and sale of all or some genetically engineered
alfalfa would remedy respondents’ injuries by eliminating
or minimizing the risk of gene flow to conventional and
organic alfalfa crops. We therefore conclude that respon­
dents have constitutional standing to seek injunctive relief
from the complete deregulation order at issue here.
Petitioners appear to suggest that respondents fail to
satisfy the “zone of interests” test we have previously
articulated as a prudential standing requirement in cases
challenging agency compliance with particular statutes.
See Reply Brief for Petitioners 12 (arguing that protection
against the risk of commercial harm “is not an interest
that NEPA was enacted to address”); Bennett v. Spear, 520
U. S. 154, 162–163 (1997). That argument is unpersua­
sive because, as the District Court found, respondents’
injury has an environmental as well as an economic com­
ponent. See App. to Pet. for Cert. 49a. In its ruling on the
merits of respondents’ NEPA claim, the District Court
held that the risk that the RRA gene conferring gly­
phosate resistance will infect conventional and organic
alfalfa is a significant environmental effect within the
meaning of NEPA. Petitioners did not appeal that part of
the court’s ruling, and we have no occasion to revisit it
here. Respondents now seek injunctive relief in order to
avert the risk of gene flow to their crops—the very same
effect that the District Court determined to be a signifi­
cant environmental concern for purposes of NEPA. The
14 MONSANTO CO. v. GEERTSON SEED FARMS
Opinion of the Court
mere fact that respondents also seek to avoid certain
economic harms that are tied to the risk of gene flow does
not strip them of prudential standing.
In short, respondents have standing to seek injunctive
relief, and petitioners have standing to seek this Court’s
review of the Ninth Circuit’s judgment affirming the entry
of such relief. We therefore proceed to the merits of the
case.
III
A
The District Court sought to remedy APHIS’s NEPA
violation in three ways: First, it vacated the agency’s
decision completely deregulating RRA; second, it enjoined
APHIS from deregulating RRA, in whole or in part, pend­
ing completion of the mandated EIS; and third, it entered
a nationwide injunction prohibiting almost all future
planting of RRA. Id., at 108a–110a. Because petitioners
and the Government do not argue otherwise, we assume
without deciding that the District Court acted lawfully in
vacating the deregulation decision. See Tr. of Oral Arg. 7
(“[T]he district court could have vacated the order in its
entirety and sent it back to the agency”); accord, id., at 15–
16. We therefore address only the latter two aspects of the
District Court’s judgment. Before doing so, however, we
provide a brief overview of the standard governing the
entry of injunctive relief.
B
“[A] plaintiff seeking a permanent injunction must
satisfy a four-factor test before a court may grant such
relief. A plaintiff must demonstrate: (1) that it has suf­
fered an irreparable injury; (2) that remedies available at
law, such as monetary damages, are inadequate to com­
pensate for that injury; (3) that, considering the balance of
hardships between the plaintiff and defendant, a remedy
Cite as: 561 U. S. ____ (2010) 15
Opinion of the Court
in equity is warranted; and (4) that the public interest
would not be disserved by a permanent injunction.” eBay
Inc. v. MercExchange, L. L. C., 547 U. S. 388, 391 (2006).
The traditional four-factor test applies when a plaintiff
seeks a permanent injunction to remedy a NEPA violation.
See Winter v. Natural Resources Defense Council, Inc., 555
U. S. ___, ___ (2008) (slip op., at 21–23).
Petitioners argue that the lower courts in this case
proceeded on the erroneous assumption that an injunction
is generally the appropriate remedy for a NEPA violation.
In particular, petitioners note that the District Court cited
pre-Winter Ninth Circuit precedent for the proposition
that, in “ ‘the run of the mill NEPA case,’ ” an injunction
delaying the contemplated government project is proper
“ ‘until the NEPA violation is cured.’ ” App. to Pet. for
Cert. 65a (quoting Idaho Watersheds Project v. Hahn, 307
F. 3d 815, 833 (CA9 2002)); see also App. to Pet. for Cert.
55a (quoting same language in preliminary injunction
order). In addition, petitioners observe, the District Court
and the Court of Appeals in this case both stated that, “in
unusual circumstances, an injunction may be withheld, or,
more likely, limited in scope” in NEPA cases. Id., at 66a
(quoting National Parks & Conservation Assn. v. Babbitt,
241 F. 3d 722, 737, n. 18 (CA9 2001) (internal quotation
marks omitted)); 570 F. 3d, at 1137.
Insofar as the statements quoted above are intended to
guide the determination whether to grant injunctive relief,
they invert the proper mode of analysis. An injunction
should issue only if the traditional four-factor test is satis­
fied. See Winter, supra, at ___ (slip op., at 21–24). In
contrast, the statements quoted above appear to presume
that an injunction is the proper remedy for a NEPA viola­
tion except in unusual circumstances. No such thumb on
the scales is warranted. Nor, contrary to the reasoning of
the Court of Appeals, could any such error be cured by a
court’s perfunctory recognition that “an injunction does
16 MONSANTO CO. v. GEERTSON SEED FARMS
Opinion of the Court
not automatically issue” in NEPA cases. See 570 F. 3d, at
1137 (internal quotation marks omitted). It is not enough
for a court considering a request for injunctive relief to ask
whether there is a good reason why an injunction should
not issue; rather, a court must determine that an injunc­
tion should issue under the traditional four-factor test set
out above.
Notwithstanding the lower courts’ apparent reliance on
the incorrect standard set out in the pre-Winter Circuit
precedents quoted above, respondents argue that the
lower courts in fact applied the traditional four-factor test.
In their view, the statements that injunctive relief is
proper in the “run-of-the-mill” NEPA case, and that such
injunctions are granted except in “unusual circumstances,”
are descriptive rather than prescriptive. See Brief for
Respondents 28, n. 14. We need not decide whether re­
spondents’ characterization of the lower court opinions in
this case is sound. Even if it is, the injunctive relief
granted here cannot stand.
C
We first consider whether the District Court erred in
enjoining APHIS from partially deregulating RRA during
the pendency of the EIS process.4
The relevant part of the District Court’s judgment states
that, “[b]efore granting Monsanto’s deregulation petition,
——————
4 Petitionersfocus their challenge on the part of the District Court’s
order prohibiting the planting of RRA. As we explain below, however,
the broad injunction against planting cannot be valid if the injunction
against partial deregulation is improper. See infra, at 23; see also App.
to Pet. for Cert. 64a (District Court order recognizing that APHIS’s
proposed remedy “seek[s], in effect, a partial deregulation that permits
the continued expansion of the Roundup Ready alfalfa market subject
to certain conditions” (emphasis added)). The validity of the injunction
prohibiting partial deregulation is therefore properly before us. Like
the District Court, we use the term “partial deregulation” to refer to
any limited or conditional deregulation. See id., at 64a, 69a.
Cite as: 561 U. S. ____ (2010) 17
Opinion of the Court
even in part, the federal defendants shall prepare an
environmental impact statement.” App. to Pet. for Cert.
108a (emphasis added); see also id., at 79a (“The Court
will enter a final judgment . . . ordering the government to
prepare an EIS before it makes a decision on Monsanto’s
deregulation petition”). The plain text of the order prohib­
its any partial deregulation, not just the particular partial
deregulation embodied in APHIS’s proposed judgment.
We think it is quite clear that the District Court meant
just what it said. The related injunction against planting
states that “no [RRA] . . . may be planted” “[u]ntil the
federal defendants prepare the EIS and decide the deregu­
lation petition.” Id., at 108a (emphasis added). That
injunction, which appears in the very same judgment and
directly follows the injunction against granting Mon­
santo’s petition “even in part,” does not carve out an ex­
ception for planting subsequently authorized by a valid
partial deregulation decision.
In our view, none of the traditional four factors govern­
ing the entry of permanent injunctive relief supports the
District Court’s injunction prohibiting partial deregula­
tion. To see why that is so, it is helpful to understand how
the injunction prohibiting a partial deregulation fits into
the broader dispute between the parties.
Respondents in this case brought suit under the APA to
challenge a particular agency order: APHIS’s decision to
completely deregulate RRA. The District Court held that
the order in question was procedurally defective, and
APHIS decided not to appeal that determination. At that
point, it was for the agency to decide whether and to what
extent it would pursue a partial deregulation. If the
agency found, on the basis of a new EA, that a limited and
temporary deregulation satisfied applicable statutory and
regulatory requirements, it could proceed with such a
deregulation even if it had not yet finished the onerous
EIS required for complete deregulation. If and when the
18 MONSANTO CO. v. GEERTSON SEED FARMS
Opinion of the Court
agency were to issue a partial deregulation order, any
party aggrieved by that order could bring a separate suit
under the Administrative Procedure Act to challenge the
particular deregulation attempted. See 5 U. S. C. §702.
In this case, APHIS apparently sought to “streamline”
the proceedings by asking the District Court to craft a
remedy that, in effect, would have partially deregulated
RRA until such time as the agency had finalized the EIS
needed for a complete deregulation. See Tr. of Oral Arg.
16, 23–24; App. to Pet. for Cert. 69a. To justify that dispo­
sition, APHIS and petitioners submitted voluminous
documentary submissions in which they purported to show
that the risk of gene flow would be insignificant if the
District Court allowed limited planting and harvesting
subject to APHIS’s proposed conditions. Respondents, in
turn, submitted considerable evidence of their own that
seemed to cut the other way. This put the District Court
in an unenviable position. “The parties’ experts disagreed
over virtually every factual issue relating to possible
environmental harm, including the likelihood of genetic
contamination and why some contamination had already
occurred.” 570 F. 3d, at 1135.
The District Court may well have acted within its dis­
cretion in refusing to craft a judicial remedy that would
have authorized the continued planting and harvesting of
RRA while the EIS is being prepared. It does not follow,
however, that the District Court was within its rights in
enjoining APHIS from allowing such planting and harvest­
ing pursuant to the authority vested in the agency by law.
When the District Court entered its permanent injunction,
APHIS had not yet exercised its authority to partially
deregulate RRA. Until APHIS actually seeks to effect a
partial deregulation, any judicial review of such a decision
is premature.5
——————
5 NEPA provides that an EIS must be “include[d] in every recommen­
Cite as: 561 U. S. ____ (2010) 19
Opinion of the Court
Nor can the District Court’s injunction be justified as a
prophylactic measure needed to guard against the possi­
bility that the agency would seek to effect on its own the
particular partial deregulation scheme embodied in the
terms of APHIS’s proposed judgment. Even if the District
Court was not required to adopt that judgment, there was
no need to stop the agency from effecting a partial deregu­
lation in accordance with the procedures established by
law. Moreover, the terms of the District Court’s injunction
do not just enjoin the particular partial deregulation
embodied in APHIS’s proposed judgment. Instead, the
District Court barred the agency from pursuing any de­
regulation—no matter how limited the geographic area in
which planting of RRA would be allowed, how great the
isolation distances mandated between RRA fields and
fields for growing non-genetically-engineered alfalfa, how
stringent the regulations governing harvesting and distri­
bution, how robust the enforcement mechanisms available
——————
dation or report on proposals for legislation and other major Federal
actions significantly affecting the quality of the human environment.”
42 U. S. C. §4332(2)(C) (emphasis added); see also Kleppe v. Sierra
Club, 427 U. S. 390, 406 (1976) (“A court has no authority to depart
from the statutory language and . . . determine a point during the
germination process of a potential proposal at which an impact state­
ment should be prepared” (first emphasis added)). When a particular
agency proposal exists and requires the preparation of an EIS, NEPA
regulations allow the agency to take at least some action pertaining to
that proposal during the pendency of the EIS process. See 40 CFR
§§1506.1(a), (c) (2009). We do not express any view on the Govern­
ment’s contention that a limited deregulation of the kind embodied in
its proposed judgment would not require the prior preparation of an
EIS. See Brief for Federal Respondents 21–22 (citing §1506.1(a)); Tr. of
Oral Arg. 20 (“what we were proposing for the interim, that is allowing
continued planting subject to various protective measures, was funda­
mentally different from the action on which the EIS was being pre­
pared”). Because APHIS has not yet invoked the procedures necessary
to attempt a limited deregulation, any judicial consideration of such
issues is not warranted at this time.
20 MONSANTO CO. v. GEERTSON SEED FARMS
Opinion of the Court
at the time of the decision, and—consequently—no matter
how small the risk that the planting authorized under
such conditions would adversely affect the environment in
general and respondents in particular.
The order enjoining any partial deregulation was also
inconsistent with other aspects of the very same judgment.
In fashioning its remedy for the NEPA violation, the
District Court steered a “middle course” between more
extreme options on either end. See id., at 1136. On the
one hand, the District Court rejected APHIS’s proposal
(supported by petitioners) to allow continued planting and
harvesting of RRA subject to the agency’s proposed limita­
tions. On the other hand, the District Court did not bar
continued planting of RRA as a regulated article under
permit from APHIS, see App. to Pet. for Cert. 75a, and it
expressly allowed farmers to harvest and sell RRA planted
before March 30, 2007, id., at 76a–79a. If the District
Court was right to conclude that any partial deregulation,
no matter how limited, required the preparation of an EIS,
it is hard to see why the limited planting and harvesting
that the District Court allowed did not also require the
preparation of an EIS. Conversely, if the District Court
was right to conclude that the limited planting and har­
vesting it allowed did not require the preparation of an
EIS, then an appropriately limited partial deregulation
should likewise have been possible.
Based on the analysis set forth above, it is clear that the
order enjoining any deregulation whatsoever does not
satisfy the traditional four-factor test for granting perma­
nent injunctive relief. Most importantly, respondents
cannot show that they will suffer irreparable injury if
APHIS is allowed to proceed with any partial deregula­
tion, for at least two independent reasons.
First, if and when APHIS pursues a partial deregulation
that arguably runs afoul of NEPA, respondents may file a
new suit challenging such action and seeking appropriate
Cite as: 561 U. S. ____ (2010) 21
Opinion of the Court
preliminary relief. See 5 U. S. C. §§702, 705. Accordingly,
a permanent injunction is not now needed to guard
against any present or imminent risk of likely irreparable
harm.
Second, a partial deregulation need not cause respon­
dents any injury at all, much less irreparable injury; if the
scope of the partial deregulation is sufficiently limited, the
risk of gene flow to their crops could be virtually nonexis­
tent. For example, suppose that APHIS deregulates RRA
only in a remote part of the country in which respondents
neither grow nor intend to grow non-genetically­
engineered alfalfa, and in which no conventional alfalfa
farms are currently located. Suppose further that APHIS
issues an accompanying administrative order mandating
isolation distances so great as to eliminate any apprecia­
ble risk of gene flow to the crops of conventional farmers
who might someday choose to plant in the surrounding
area. See, e.g., Brief in Opposition 9, n. 6 (quoting study
concluding “ ‘that in order for there to be zero tolerance of
any gene flow between a [RRA] seed field and a conven­
tional seed field, those fields would have to have a five­
mile isolation distance between them’ ”); see also Tr. of
Oral Arg. 15–16 (representation from the Solicitor General
that APHIS may impose conditions on the deregulation of
RRA via issuance of an administrative order). Finally,
suppose that APHIS concludes in a new EA that its lim­
ited deregulation would not pose a significant risk of gene
flow or harmful weed development, and that the agency
adopts a plan to police vigorously compliance with its
administrative order in the limited geographic area in
question. It is hard to see how respondents could show
that such a limited deregulation would cause them likely
irreparable injury. (Respondents in this case do not repre­
sent a class, so they could not seek to enjoin such an order
on the ground that it might cause harm to other parties.)
In any case, the District Court’s order prohibiting any
22 MONSANTO CO. v. GEERTSON SEED FARMS
Opinion of the Court
partial deregulation improperly relieves respondents of
their burden to make the requisite evidentiary showing.6
Of course, APHIS might ultimately choose not to par­
tially deregulate RRA during the pendency of the EIS, or
else to pursue the kind of partial deregulation embodied in
its proposed judgment rather than the very limited de­
regulation envisioned in the above hypothetical. Until
such time as the agency decides whether and how to exer­
cise its regulatory authority, however, the courts have no
cause to intervene. Indeed, the broad injunction entered
here essentially pre-empts the very procedure by which
the agency could determine, independently of the pending
EIS process for assessing the effects of a complete deregu­
lation, that a limited deregulation would not pose any
appreciable risk of environmental harm. See 40 CFR
§§1501.4, 1508.9(a) (2009).
In sum, we do not know whether and to what extent
APHIS would seek to effect a limited deregulation during
the pendency of the EIS process if it were free to do so; we
do know that the vacatur of APHIS’s deregulation decision
means that virtually no RRA can be grown or sold until
such time as a new deregulation decision is in place, and
we also know that any party aggrieved by a hypothetical
future deregulation decision will have ample opportunity
——————
6 The District Court itself appears to have recognized that its broad
injunction may not have been necessary to avert any injury to respon­
dents. See App. to Pet. for Cert. 191a (“It does complicate it to try to
fine-tune a particular remedy. So the simpler the remedy, the more
attractive it is from the Court’s point of view, because it appears to me
enforcement is easier. Understanding it is easier, and it may be, while
a blunt instrument, it may actually, for the short term, achieve its
result, achieve its purpose, even maybe it overachieves it. . . . Maybe a
lot of it is not necessary. I don’t know” (emphasis added)); see also ibid.(“I don’t say you have to be greater than 1.6 miles, you have to be away
from the bees, you have be dah dah dah. That’s the farm business. I’m
not even in it”); id., at 192a (“I am not going to get into the isolation
distances”).
Cite as: 561 U. S. ____ (2010) 23
Opinion of the Court
to challenge it, and to seek appropriate preliminary relief,
if and when such a decision is made. In light of these
particular circumstances, we hold that the District Court
did not properly exercise its discretion in enjoining a
partial deregulation of any kind pending APHIS’s prepa­
ration of an EIS. It follows that the Court of Appeals
erred in affirming that aspect of the District Court’s
judgment.
D
We now turn to petitioners’ claim that the District Court
erred in entering a nationwide injunction against planting
RRA. Petitioners argue that the District Court did not
apply the right test for determining whether to enter
permanent injunctive relief; that, even if the District
Court identified the operative legal standard, it erred as a
matter of law in applying that standard to the facts of this
case; and that the District Court was required to grant
petitioners an evidentiary hearing to resolve contested
issues of fact germane to the remedial dispute between the
parties. We agree that the District Court’s injunction
against planting went too far, but we come to that conclu­
sion for two independent reasons.
First, the impropriety of the District Court’s broad
injunction against planting flows from the impropriety of
its injunction against partial deregulation. If APHIS may
partially deregulate RRA before preparing a full-blown
EIS—a question that we need not and do not decide here—
farmers should be able to grow and sell RRA in accordance
with that agency determination. Because it was inappro­
priate for the District Court to foreclose even the possibil­
ity of a partial and temporary deregulation, it necessarily
follows that it was likewise inappropriate to enjoin any
and all parties from acting in accordance with the terms of
such a deregulation decision.
Second, respondents have represented to this Court that
24 MONSANTO CO. v. GEERTSON SEED FARMS
Opinion of the Court
the District Court’s injunction against planting does not
have any meaningful practical effect independent of its
vacatur. See Brief for Respondents 24; see also Tr. of Oral
Arg. 37 (“[T]he mistake that was made [by the District
Court] was in not appreciating . . . that the vacatur did
have [the] effect” of independently prohibiting the growth
and sale of almost all RRA). An injunction is a drastic and
extraordinary remedy, which should not be granted as a
matter of course. See, e.g., Weinberger v. Romero-Barcelo,
456 U. S. 305, 311–312 (1982). If a less drastic remedy
(such as partial or complete vacatur of APHIS’s deregula­
tion decision) was sufficient to redress respondents’ injury,
no recourse to the additional and extraordinary relief of an
injunction was warranted. See ibid.; see also Winter, 555
U. S., at ___ (slip op., at 21–23).
E
In sum, the District Court abused its discretion in en­
joining APHIS from effecting a partial deregulation and in
prohibiting the possibility of planting in accordance with
the terms of such a deregulation. Given those errors, this
Court need not express any view on whether injunctive
relief of some kind was available to respondents on the
record before us. Nor does the Court address the question
whether the District Court was required to conduct an
evidentiary hearing before entering the relief at issue
here. The judgment of the Ninth Circuit is reversed, and
the case is remanded for further proceedings consistent
with this opinion.
It is so ordered.
JUSTICE BREYER took no part in the consideration or
decision of this case.
Cite as: 561 U. S. ____ (2010) 1
STEVENS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–475
_________________
MONSANTO COMPANY, ET AL., PETITIONERS v.
GEERTSON SEED FARMS ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 21, 2010]
JUSTICE STEVENS, dissenting.
The Court does not dispute the District Court’s critical
findings of fact: First, Roundup Ready Alfalfa (RRA) can
contaminate other plants. See App. to Pet. for Cert. 38a,
54a, 62a. Second, even planting in a controlled setting
had led to contamination in some instances. See id., at
69a–70a. Third, the Animal and Plant Health Inspection
Service (APHIS) has limited ability to monitor or enforce
limitations on planting. See id., at 70a. And fourth,
genetic contamination from RRA could decimate farmers’
livelihoods and the American alfalfa market for years to
come. See id., at 71a; see also id., at 29a–30a. Instead,
the majority faults the District Court for “enjoining
APHIS from partially deregulating RRA.” Ante, at 16.
In my view, the District Court may not have actually
ordered such relief, and we should not so readily assume
that it did. Regardless, the District Court did not abuse
its discretion when, after considering the voluminous
record and making the aforementioned findings, it issued
the order now before us.
I
To understand the District Court’s judgment, it is nec
essary to understand the background of this litigation.
Petitioner Monsanto Company (Monsanto) is a large cor
2 MONSANTO CO. v. GEERTSON SEED FARMS
STEVENS, J., dissenting
poration that has long produced a weed killer called
Roundup. After years of experimentation, Monsanto and
co-petitioner Forage Genetics International (FGI) geneti
cally engineered a mutation in the alfalfa genome that
makes the plant immune to Roundup. Monsanto and
FGI’s new product, RRA, is “the first crop that has been
engineered to resist a[n] herbicide” and that can transmit
the genetically engineered gene to other plants. See App.
to Pet. for Cert. 45a.
In 2004, in the midst of a deregulatory trend in the
agricultural sector, petitioners asked APHIS to deregulate
RRA, thereby allowing it to be sold and planted nation
wide. App. 101a. Rather than conducting a detailed
analysis and preparing an “environmental impact state
ment” (EIS), as required by the National Environmental
Policy Act of 1969 (NEPA) for every “major Federal ac
tio[n] significantly affecting the quality of the human
environment,” 42 U. S. C. §4332(2)(C), APHIS merely
conducted an abbreviated “environmental assessment”
(EA). During the 6-month period in which APHIS allowed
public comment on its EA, the agency received 663 com
ments, 520 of which opposed deregulation. App. to Pet. for
Cert. 29a. Farmers and scientists opined that RRA could
contaminate alfalfa that has not been genetically modified,
destroying the American export market for alfalfa and,
potentially, contaminating other plants and breeding a
new type of pesticide-resistant weed. Id., at 29a–30a.
Despite substantial evidence that RRA genes could
transfer to other plants, APHIS issued a Finding of No
Significant Impact and agreed to deregulate RRA “uncon
ditionally,” ante, at 4. With no EIS to wait for and no
regulation blocking its path, petitioners began selling
RRA. Farmers and environmental groups swiftly brought
this lawsuit to challenge APHIS’s decision to deregulate,
raising claims under NEPA and other statutes.
The District Court carefully reviewed a long record and
Cite as: 561 U. S. ____ (2010) 3
STEVENS, J., dissenting
found that “APHIS’s reasons for concluding” that the risks
of genetic contamination are low were “not ‘convincing.’ ”
App. to Pet. for Cert. 38a. A review of APHIS’s internal
documents showed that individuals within the agency
warned that contamination might occur. APHIS rested its
decision to deregulate on its assertion that contamination
risk is “not significant because it is the organic and con
ventional farmers’ responsibility” to protect themselves
and the environment. Ibid. Yet the agency drew this
conclusion without having investigated whether such
farmers “can, in fact, protect their crops from contamina
tion.” Ibid. The District Court likewise found that
APHIS’s reasons for disregarding the risk of pesticide
resistant weeds were speculative and “not convincing.”
Id., at 46a. The agency had merely explained that if
weeds acquire roundup resistance, farmers can use “ ‘[a]l
ternative herbicides.’ ” Ibid. In light of the “acknowl
edged” risk of RRA gene transmission and the potential
“impact on the development of Roundup resistant weeds,”
the court concluded that there was a significant possibility
of serious environmental harm, and granted summary
judgment for the plaintiffs. Id., at 54a; see also id., at 45a.
At this point, the question of remedy arose. The parties
submitted proposed final judgments, and several corpora
tions with an interest in RRA, including Monsanto, sought
permission to intervene. The District Court granted their
motion and agreed “to give them the opportunity to pre
sent evidence to assist the court in fashioning the appro
priate scope of whatever relief is granted.” Id., at 54a
(internal quotation marks omitted).
While the District Court considered the proposed judg
ments, it issued a preliminary injunction. Ordinarily, the
court explained, the remedy for failure to conduct an EIS
is to vacate the permit that was unlawfully given—the
result of which, in this case, would be to prohibit any use
of RRA. See id., at 55a; see also id., at 65a. But this case
4 MONSANTO CO. v. GEERTSON SEED FARMS
STEVENS, J., dissenting
presented a special difficulty: Following APHIS’s unlawful
deregulation order, some farmers had begun planting
genetically modified RRA. Id., at 55a. In its preliminary
injunction, the District Court ordered that no new RRA
could be planted until APHIS completed the EIS or the
court determined that some other relief was appropriate.
But, so as to protect these farmers, the court declined to
prohibit them from “harvesting, using, or selling” any
crops they had already planted. Id., at 56a. And “to
minimize the harm to those growers who intend to immi
nently plant Roundup Ready alfalfa,” the court permitted
“[t]hose growers who intend to plant [RRA] in the next
three weeks and have already purchased the seed” to go
ahead and plant. Id., at 58a (emphasis deleted). Essen
tially, the court grandfathered in those farmers who had
relied, in good faith, on APHIS’s actions.
Before determining the scope of its final judgment, the
District Court invited the parties and intervenors to sub
mit “whatever additional evidence” they “wish[ed] to
provide,” and it scheduled additional oral argument. Id.,at 58a–59a. The parties submitted “competing proposals
for permanent injunctive relief.” Id., at 60a. The plain
tiffs requested that no one—not even the grandfathered-in
farmers—be allowed to plant, grow, or harvest RRA until
the full EIS had been prepared. Id., at 64a. APHIS and
the intervenors instead sought a remedy that would “fa
cilitat[e] the continued and dramatic growth” of RRA: a
“partial deregulation” order that would permit planting
subject to certain conditions, such as specified minimum
distances between RRA and conventional alfalfa and
special cleaning requirements for equipment used on the
genetically modified crop. See id., at 60a–64a.
The court adopted a compromise. First, it declined to
adopt the APHIS-Monsanto proposal. APHIS itself had
acknowledged that “gene transmission could and had
occurred,” and that RRA “could result in the development
Cite as: 561 U. S. ____ (2010) 5
STEVENS, J., dissenting
of Roundup-resistant weeds.” Id., at 61a–62a. In light of
the substantial record evidence of these risks, the court
would not agree to a nationwide planting scheme “without
the benefit of the development of all the relevant data,” as
well as public comment about whether contamination
could be controlled. Id., at 68a. The “partial deregulation”
proposed by petitioners, the court noted, was really “de
regulation with certain conditions,” id., at 69a—which, for
the same reasons given in the court’s earlier order, re
quires an EIS, ibid. The court pointed out numerous
problems with the APHIS-Monsanto proposal. Neither
APHIS nor Monsanto had provided “evidence that sug
gests whether, and to what extent, the proposed interim
conditions” would actually “be followed,” and comparable
conditions had failed to prevent contamination in certain
limited settings. Id., at 69a–70a. APHIS, moreover,
conceded that “it does not have the resources to inspect”
the RRA that had already been planted, and so could not
possibly be expected “to adequately monitor the more than
one million acres of [RRA] intervenors estimate [would] be
planted” under their proposal. Ibid. That was especially
problematic because any plan to limit contamination
depended on rules about harvesting, and farmers were
unlikely to follow those rules. Id., at 71a. “APHIS ha[d]
still not made any inquiry” into numerous factual concerns
raised by the court in its summary judgment order issued
several months earlier. Id., at 70a.
Next, the court rejected the plaintiffs’ proposed remedy
of “enjoin[ing] the harvesting and sale of already planted”
RRA. Id., at 76a. Although any planting or harvesting of
RRA poses a contamination risk, the court reasoned that
the equities were different for those farmers who had
already invested time and money planting RRA in good
faith reliance on APHIS’s deregulation order. And small
amounts of harvesting could be more easily monitored.
Rather than force the farmers to tear up their crops, the
6 MONSANTO CO. v. GEERTSON SEED FARMS
STEVENS, J., dissenting
court imposed a variety of conditions on the crops’ han
dling and distribution. Id., at 77a.
As to all other RRA, however, the court sided with the
plaintiffs and enjoined planting during the pendency of
the EIS. Balancing the equities, the court explained that
the risk of harm was great. “[C]ontamination cannot be
undone; it will destroy the crops of those farmers who do
not sell genetically modified alfalfa.” Id., at 71a. And
because those crops “cannot be replanted for two to four
years,” that loss will be even greater. Ibid. On the other
side of the balance, the court recognized that some farmers
may wish to switch to genetically modified alfalfa immedi
ately, and some companies like Monsanto want to start
selling it to them just as fast. But, the court noted, RRA is
a small percentage of those companies’ overall business;
unsold seed can be stored; and the companies “ ‘have [no]
cause to claim surprise’ ” as to any loss of anticipated
revenue, as they “were aware of plaintiffs’ lawsuit” and
“nonetheless chose to market” RRA. Id., at 72a.
Thus, the District Court stated that it would “vacat[e]
the June 2005 deregulation decision”; “enjoi[n] the plant
ing of [RRA] in the United States after March 30, 2007,”
the date of the decision, “pending the government’s com
pletion of the EIS and decision on the deregulation peti
tion”; and impose “conditions on the handling and identifi
cation of already-planted [RRA].” Id., at 79a. On the
same day, the court issued its judgment. In relevant part,
the judgment states:
“The federal defendants’ June 14, 2005 Determination
of Nonregulated Status for [RRA] is VACATED. Be
fore granting Monsanto’s deregulation petition, even
in part, the federal defendants shall prepare an [EIS].
Until the federal defendants prepare the EIS and de
cide the deregulation petition, no [RRA] may be
planted. . . . [RRA already] planted before March 30,
Cite as: 561 U. S. ____ (2010) 7
STEVENS, J., dissenting
2007 may be grown, harvested and sold subject to the
following conditions.” Id., at 108a–109a.
II
Before proceeding to address the Court’s opinion on its
own terms, it is important to note that I have reservations
about the validity of those terms. The Court today rests
not only the bulk of its analysis but also the primary basis
for our jurisdiction on the premise that the District Court
enjoined APHIS from partially deregulating RRA in any
sense. See ante, at 9–11, 16–23.1 That is a permissible,
but not necessarily correct, reading of the District Court’s
judgment.
So far as I can tell, until petitioners’ reply brief, neither
petitioners nor the Government submitted to us that the
District Court had exceeded its authority in this manner.
And, indeed, the Government had not raised this issue in
any court at all. Petitioners did not raise the issue in any
of their three questions presented or in the body of their
petition for a writ or certiorari. And they did not raise the
issue in their opening briefs to this Court. Only after
respondents alleged that Monsanto’s injury would not be
redressed by vacating the injunction, insofar as RRA
would still be a regulated article, did petitioners bring the
issue to the Court’s attention. Explaining why they have a
redressable injury, petitioners alleged that the District
Court’s order prevents APHIS from “implement[ing] an[y]
——————
1 See also ante, at 19–20 (“[T]he District Court barred the agency
from pursuing any deregulation—no matter how limited the geographic
area in which planting of RRA would be allowed, how great the isola
tion distances mandated between RRA fields and fields for growing
non-genetically-engineered alfalfa, how stringent the regulations
governing harvesting and distribution, how robust the enforcement
mechanisms available at the time of the decision, and—consequently—
no matter how small the risk that the planting authorized under such
conditions would adversely affect the environment in general and
respondents in particular” (emphasis deleted)).
8 MONSANTO CO. v. GEERTSON SEED FARMS
STEVENS, J., dissenting
interim solution allowing continued planting.” Reply Brief
for Petitioners 5. APHIS, the party that the Court says
was wrongly “barred . . . from pursuing any deregulation,”
even “in accordance with the procedures established by
law,” ante, at 19, did not complain about this aspect of the
District Court’s order even in its reply brief.
Thus, notwithstanding that petitioners “adequately
preserved their objection that the vacated deregulation
decision should have been replaced by APHIS’s proposed
injunction,” ante, at 8 (emphasis added), the key legal
premise on which the Court decides this case was never
adequately presented. Of course, this is not standard—or
sound—judicial practice. See Kumho Tire Co. v. Carmi
chael, 526 U. S. 137, 159 (1999) (STEVENS, J., concurring
in part and dissenting in part). Today’s decision illus
trates why, for it is quite unclear whether the Court’s
premise is correct, and the Court has put itself in the
position of deciding legal issues without the aid of briefing.
In my view, the District Court’s judgment can fairly be
read to address only (1) total deregulation orders of the
kind that spawned this lawsuit, and (2) the particular
partial deregulation order proposed to the court by APHIS.
This interpretation of the judgment is more consistent
with the District Court’s accompanying opinion, which
concluded by stating that the court “will enter a final
judgment” “ordering the government to prepare an EIS
before [the court] makes a decision on Monsanto’s deregu
lation petition.” App. to Pet. for Cert. 79a. The language
of that opinion does not appear to “ba[r] the agency from
pursuing any deregulation—no matter how limited,” ante,
at 19 (emphasis deleted). This interpretation is also more
consistent with APHIS’s own decision not to contest what,
according to the Court, was an unprecedented infringe
ment on the agency’s statutory authority.
To be sure, the District Court’s judgment is somewhat
opaque. But it is troubling that we may be asserting
Cite as: 561 U. S. ____ (2010) 9
STEVENS, J., dissenting
jurisdiction and deciding a highly factbound case based on
nothing more than a misunderstanding. It is also trou
bling that we may be making law without adequate brief
ing on the critical questions we are passing upon. I would
not be surprised if on remand the District Court merely
clarified its order.
III
Even assuming that the majority has correctly inter
preted the District Court’s judgment, I do not agree that
we should reverse the District Court.
At the outset, it is important to observe that when a
district court is faced with an unlawful agency action, a
set of parties who have relied on that action, and a prayer
for relief to avoid irreparable harm, the court is operating
under its powers of equity. In such a case, a court’s func
tion is “to do equity and to mould each decree to the neces
sities of the particular case.” Hecht Co. v. Bowles, 321
U. S. 321, 329 (1944). “Flexibility” and “practicality” are
the touchtones of these remedial determinations, as “the
public interest,” “private needs,” and “competing private
claims” must all be weighed and reconciled against the
background of the court’s own limitations and its particu
lar familiarity with the case. Id., at 329–330.2
When a district court takes on the equitable role of
adjusting legal obligations, we review the remedy it crafts
——————
2 See also, e.g., Railroad Comm’n of Tex. v. Pullman Co., 312 U. S.
496, 500 (1941) (“The history of equity jurisdiction is the history of
regard for public consequences. . . . There have been as many and as
variegated applications of this supple principle as the situations that
have brought it into play”); Seymour v. Freer, 8 Wall. 202, 218 (1869)
(“[A] court of equity ha[s] unquestionable authority to apply its flexible
and comprehensive jurisdiction in such manner as might be necessary
to the right administration of justice between the parties”). Indeed, the
very “ground of this jurisdiction” is a court’s “ability to give a more
complete and perfect remedy.” 2 J. Story, Equity Jurisprudence §924,
p. 225 (M. Bigelow ed. 13th ed. 1886).
10 MONSANTO CO. v. GEERTSON SEED FARMS
STEVENS, J., dissenting
for abuse of discretion. “[D]eference,” we have explained,
“is the hallmark of abuse-of-discretion review.” General
Elec. Co. v. Joiner, 522 U. S. 136, 143 (1997). Although
equitable remedies are “not left to a trial court’s ‘inclina
tion,’ ” they are left to the court’s “ ‘judgment.’ ” Albemarle
Paper Co. v. Moody, 422 U. S. 405, 416 (1975) (quoting
United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC
Va. 1807) (Marshall, C. J.)). The principles set forth in
applicable federal statutes may inform that judgment.
See United States v. Oakland Cannabis Buyers’ Coopera
tive, 532 U. S. 483, 497 (2001) (“[A] court sitting in equity
cannot ignore the judgment of Congress, deliberately
expressed in legislation” (internal quotation marks omit
ted)). And historically, courts have had particularly broad
equitable power—and thus particularly broad discretion—
to remedy public nuisances and other “ ‘purprestures upon
public rights and properties,’ ” Mugler v. Kansas, 123 U. S.
623, 672 (1887),3 which include environmental harms.4
In my view, the District Court did not “unreasonably
exercis[e]” its discretion, Bennett v. Bennett, 208 U. S. 505,
512 (1908), even if it did categorically prohibit partial
deregulation pending completion of the EIS. Rather, the
District Court’s judgment can be understood as either of
two reasonable exercises of its equitable powers.
Equitable Application of Administrative Law
First, the District Court’s decision can be understood as
an equitable application of administrative law. Faced
with two different deregulation proposals, the District
Court appears to have vacated the deregulation that had
already occurred, made clear that NEPA requires an EIS
——————
3 See Steelworkers v. United States, 361 U. S. 39, 60–61 (1959) (per
curiam) (reviewing history of injunctions to prevent public nuisances).
4 See, e.g., Georgia v. Tennessee Copper Co., 206 U. S. 230 (1907) (air
pollution); Arizona Copper Co. v. Gillespie, 230 U. S. 46, 56–57 (1913)
(water pollution).
Cite as: 561 U. S. ____ (2010) 11
STEVENS, J., dissenting
for any future deregulation of RRA, and partially stayed
the vacatur to the extent it affects farmers who had al
ready planted RRA.5
Under NEPA, an agency must prepare an EIS for “every
. . . major Federal actio[n] significantly affecting the qual
ity of the human environment.” 42 U. S. C. §4332(2)(C).
Recall that the District Court had found, on the basis of
substantial evidence, that planting RRA can cause genetic
contamination of other crops, planting in controlled set
tings had led to contamination, APHIS is unable to moni
tor or enforce limitations on planting, and genetic con
tamination could decimate the American alfalfa market.
In light of that evidence, the court may well have con
cluded that any deregulation of RRA, even in a “limited
. . . geographic area” with “stringent . . . regulations gov
erning harvesting and distribution,”6 ante, at 19–20, re
——————
5 See Reply Brief for Federal Respondents 3. There is an ongoing
debate about the role of equitable adjustments in administrative law.
See, e.g., Levin, Vacation at Sea: Judicial Remedies and Equitable
Discretion in Administrative Law, 53 Duke L. J. 291 (2003). The
parties to this appeal and the majority assume that the District Court’s
remedy was crafted under its equity powers, and I will do the same.
6 One of the many matters not briefed in this case is how limited a
partial deregulation can be. It is not clear whether the sort of ex
tremely limited “partial deregulations” envisioned by the Court, see
ante, at 19–23, in which RRA is “deregulated” in one small geographic
area pursuant to stringent restrictions, could be achieved only through
“partial deregulation” actions, or whether they could also (or exclu
sively) be achieved through a more case-specific permit process. Under
the applicable regulations, a regulated article may still be used subject
to a permitting process. See 7 CFR §§340.0, 340.4 (2010). These
permits “prescribe confinement conditions and standard operating
procedures . . . to maintain confinement of the genetically engineered
organism.” Introduction of Organisms and Products Altered or Pro
duced Through Genetic Engineering, 72 Fed. Reg. 39021, 39022 (2007)
(hereinafter Introduction).
Ordinarily, “[o]nce an article has been deregulated, APHIS does not
place any restrictions or requirements on its use.” Id., at 39023. As of
2007, APHIS had never—not once—granted partial approval of a
12 MONSANTO CO. v. GEERTSON SEED FARMS
STEVENS, J., dissenting
quires an EIS under NEPA. See generally D. Mandelker,
NEPA Law and Litigation §§8:33–8:48 (2d ed. 2009) (de
scribing when an EIS is required); cf. Marsh v. Oregon
Natural Resources Council, 490 U. S. 360, 371 (1989)
(NEPA embodies “sweeping commitment” to environ
mental safety and principle that “the agency will not act
on incomplete information, only to regret its decision after
it is too late to correct”). Indeed, it appears that any de
regulation of a genetically modified, herbicide-resistant
crop that can transfer its genes to other organisms and
cannot effectively be monitored easily fits the criteria for
when an EIS is required.7 That is especially so when, as
in this case, the environmental threat is novel. See Winter
v. Natural Resources Defense Council, Inc., 555 U. S. ___,
___ (2008) (slip op., at 13) (EIS is more important when
party “is conducting a new type of activity with completely
unknown effects on the environment”).8
——————
petition for nonregulated status. USDA, Introduction of Genetically
Engineered Organisms, Draft Environmental Impact Statement, July
2007, p. 11, online at http://www.aphis.usda.gov/brs/pdf/complete_
eis.pdf (as visited June 18, 2010, and available in Clerk of Court’s
case file). In 2007, APHIS began contemplating a “new system” to
allow for the release and use of genetically modified organisms, for
“special cases” in which there are risks “that could be mitigated with
conditions to ensure safe commercial use.” Introduction 39024 (em
phasis added).
7 See, e.g., 40 CFR §1508.8 (2009) (determination whether an EIS is
required turns on both “[d]irect effects” and “[i]ndirect effects,” and
“include[s] those resulting from actions which may have both beneficial
and detrimental effects even if on balance the agency believes that the
effect will be beneficial”); §1508.27(b)(4) (determination whether an EIS
is required turns on “[t]he degree to which the effects on the quality of
the human environment are likely to be highly controversial”);
§1508.27(b)(5) (determination whether an EIS is required turns on
“[t]he degree to which the possible effects on the quality of the human
environment are highly uncertain or involve unique or unknown
risks”).
8 The Court posits a hypothetical in which APHIS deregulates RRA
limited to a remote area in which alfalfa is not grown, and issues an
Cite as: 561 U. S. ____ (2010) 13
STEVENS, J., dissenting
Moreover, given that APHIS had already been ordered
to conduct an EIS on deregulation of RRA, the court could
have reasonably feared that partial deregulation would
undermine the agency’s eventual decision. Courts con
fronted with NEPA violations regularly adopt interim
measures to maintain the status quo, particularly if allow
ing agency action to go forward risks foreclosing alterna
tive courses of action that the agency might have adopted
following completion of an EIS. See D. Mandelker, NEPA
Law and Litigation §4:61. The applicable regulations, to
which the District Court owed deference,9 provide that
during the preparation of an EIS, “no action concerning
the [agency’s] proposal shall be taken which would . . .
[h]ave an adverse environmental impact” or “[l]imit the
choice of reasonable alternatives.” 40 CFR §1506.1(a)
(2009). As exemplified by the problem of what to do with
farmers who had already purchased or planted RRA prior
to the District Court’s judgment, even minimal deregula
tion can limit future regulatory options. “Courts must
remember that in many cases allowing an agency to pro
ceed makes a mockery of the EIS process, converting it
——————
accompanying order “mandating isolation distances so great as to
eliminate any appreciable risk of gene flow to the crops of conventional
farmers who might someday choose to plant in the surrounding area.”
Ante, at 21. At the outset, it is important to note the difference be
tween a plausible hypothetical and a piece of fiction. At least as of
2007, APHIS had never granted partial approval of a petition for
nonregulated status. See n. 6, supra. And I doubt that it would choose
to deregulate genetically modified alfalfa in a place where the growing
conditions and sales networks for the product are so poor that no
farmer already plants it. Moreover, the notion that this imagined
deregulation would pose virtually no environmental risk ignores one of
the District Court’s critical findings of fact: APHIS has very limited
capacity to monitor its own restrictions. The agency could place all
manner of constraints on its deregulation orders; they will have no
effect unless they are enforced.
9 See Marsh v. Oregon Natural Resources Council, 490 U. S. 360, 372
(1989).
14 MONSANTO CO. v. GEERTSON SEED FARMS
STEVENS, J., dissenting
from analysis to rationalization.” Herrmann, Injunctions
for NEPA Violations: Balancing the Equities, 59 U. Chi.
L. Rev. 1263, 1289 (1992); see also see 40 CFR §1502.5(EIS should be implemented in manner assuring it “will
not be used to rationalize or justify decisions already
made”).
Although the majority does not dispute that the District
Court could have reasonably concluded that NEPA re
quires an EIS for even partial deregulation of RRA, it
suggests that any such conclusion would have been in
compatible with the court’s decision to permit limited
harvesting by farmers who had already planted RRA. See
ante, at 20.10 I do not see the “inconsisten[cy].” Ibid.NEPA does not apply to actions by federal courts. See 40
CFR §1508.12. Exercising its equitable discretion to
balance the interests of the parties and the public, the
District Court would have been well within its rights to
find that NEPA requires an EIS before the agency grants
“Monsanto’s deregulation petition, even in part,” App. to
Pet. for Cert. 108a, yet also to find that a partial stay of
the vacatur was appropriate to protect the interests of
those farmers who had already acted in good-faith reliance
on APHIS.
Similarly, I do not agree that the District Court’s ruling
was “premature” because APHIS had not yet effected any
partial deregulations, ante, at 19. Although it is “for the
agency to decide whether and to what extent” it will pur
sue deregulation, ante, at 17, the court’s application of
NEPA to APHIS’s regulation of RRA might have con
trolled any deregulation during the pendency of the EIS.
Petitioners and APHIS had already come back to the court
——————
10 The Court states that the order permitted both harvesting and
planting. But the court’s final judgment permitted only sale and
harvesting of RRA planted before March 30, 2007, more than a month
before the judgment. See App. to Pet. for Cert. 109a; see also id., at
79a.
Cite as: 561 U. S. ____ (2010) 15
STEVENS, J., dissenting
with a proposed partial deregulation order which, the
court explained, was incompatible with its determination
that there is a substantial risk of gene spreading and that
APHIS lacks monitoring capacity. That same concern
would apply to any partial deregulation order. The court
therefore had good reason to make it clear, upfront, that
the parties should not continue to expend resources pro
posing such orders, instead of just moving ahead with an
EIS. Cf. Railroad Comm’n of Tex. v. Pullman Co., 312
U. S. 496, 500 (1941) (“The resources of equity are equal to
an adjustment that will avoid the waste of a tentative
decision”). Indeed, it was APHIS itself that “sought to
‘streamline’ ” the process. Ante, at 18.
Injunctive Relief
Second, the District Court’s judgment can be understood
as a reasonable response to the nature of the risks posed
by RRA. Separate and apart from NEPA’s requirement of
an EIS, these risks were sufficiently serious, in my view,
that the court’s injunction was a permissible exercise of its
equitable authority.
The District Court found that gene transfer can and
does occur, and that if it were to spread through open land
the environmental and economic consequences would be
devastating. Cf. Amoco Production Co. v. Gambell, 480
U. S. 531, 545 (1987) (“Environmental injury, by its na
ture, can seldom be adequately remedied by money dam
ages and is often permanent or at least of long duration,
i.e., irreparable”). Although “a mere possibility of a future
nuisance will not support an injunction,” courts have
never required proof “that the nuisance will occur”; rather,
“it is sufficient . . . that the risk of its happening is greater
than a reasonable man would incur.” 5 J. Pomeroy, A
Treatise on Equity Jurisprudence and Equitable Reme
dies, §1937 (§523), p. 4398 (2d ed. 1919). Once gene trans
fer occurred in American fields, it “would be difficult—if
16 MONSANTO CO. v. GEERTSON SEED FARMS
STEVENS, J., dissenting
not impossible—to reverse the harm.” Hollingsworth v.
Perry, 558 U. S. __, __ (2010) (per curiam) (slip op., at 12).
Additional considerations support the District Court’s
judgment. It was clear to the court that APHIS had only
limited capacity to monitor planted RRA, and some RRA
had already been planted. The marginal threat posed by
additional planting was therefore significant. Injunctive
remedies are meant to achieve a “nice adjustment and
reconciliation between the competing claims” of injury by
“mould[ing] each decree to the necessities of the case.”
Weinberger v. Romero-Barcelo, 456 U. S. 305, 312 (1982)
(internal quotation marks omitted). Under these circum
stances, it was not unreasonable for the court to conclude
that the most equitable solution was to allocate the lim
ited amount of potentially safe RRA to the farmers who
had already planted that crop.11
The Court suggests that the injunction was nonetheless
too sweeping because “a partial deregulation need not
cause respondents any injury at all . . . if the scope of the
partial deregulation is sufficiently limited, the risk of gene
flow to their crops could be virtually nonexistent.” Ante, at
21. The Court appears to reach this conclusion by citing
one particular study (in a voluminous record), rather than
any findings of fact.12 Even assuming that this study is
——————
11 As explained previously, I do not see the court’s broad injunction as
“inconsistent,” ante, at 20, with its decision that farmers who had
already planted RRA could harvest their crop. The equities are differ
ent for farmers who relied on the agency than for companies like
Monstanto that developed an organism knowing it might be regulated;
and APHIS could monitor only a limited amount of RRA.
12 The Court also hypothesizes a set of growing conditions that would
isolate RRA from the plaintiffs in this case, even if not from other
farmers. See ante, at 21–22. As already explained, these hypotheticals
are rather unrealistic. See n. 8, supra. And, given that the plaintiffs
include environmental organizations as well as farmer and consumer
associations, it is hard to see how APHIS could so carefully isolate and
protect their interests. In any event, because APHIS concedes that it
Cite as: 561 U. S. ____ (2010) 17
STEVENS, J., dissenting
correct, the Court ignores the District Court’s findings
that gene flow is likely and that APHIS has little ability to
monitor any conditions imposed on a partial deregulation.
Limits on planting or harvesting may operate fine in a
laboratory setting, but the District Court concluded that
many limits will not be followed and cannot be enforced in
the real world.13
Against that background, it was perfectly reasonable to
wait for an EIS. APHIS and petitioners argued to the
District Court that partial deregulation could be safely
implemented, they submitted evidence intended to show
that planting restrictions would prevent the spread of the
newly engineered gene, and they contested “virtually
every factual issue relating to possible environmental
harm.” Geertson Seed Farms v. Johanns, 570 F. 3d 1130,
1135 (CA9 2009). But lacking “the benefit of the develop
ment of all the relevant data,” App. to Pet. for Cert. 68a,
the District Court did not find APHIS’s and petitioners’
assertions to be convincing. I cannot say that I would
have found otherwise. It was reasonable for the court to
conclude that planting could not go forward until more
——————
cannot monitor such limits, rules that protect these or any other parties
may be merely hortatory in practice. Moreover, although we have not
squarely addressed the issue, in my view “[t]here is no general re
quirement that an injunction affect only the parties in the suit.”
Bresgal v. Brock, 843 F. 2d 1163, 1169 (CA9 1987). To limit an injunc
tion against a federal agency to the named plaintiffs “would only
encourage numerous other” regulated entities “to file additional law
suits in this and other federal jurisdictions.” Livestock Marketing Assn.
v. United States Dept. of Agriculture, 207 F. Supp. 2d 992, 1007 (SD
2002), aff’d, 335 F. 3d 711, 726 (CA8 2003).
13 The majority notes that the District Court acknowledged, at a hear
ing several months before it issued the judgment, that a simple but
slightly overinclusive remedy may be preferable to an elaborate set of
planting conditions. See ante, at 22, n. 6. Quite right. As the District
Court said to APHIS’s lawyer at that hearing, if the agency issues an
elaborate set of precautions, “I don’t know how you even start to enforce
it.” App. to Pet. for Cert. 190a–191a.
18 MONSANTO CO. v. GEERTSON SEED FARMS
STEVENS, J., dissenting
complete study, presented in an EIS, showed that
the known problem of gene flow could, in reality, be
prevented.14
The District Court’s decision that more study was
needed to assess whether limits on deregulation could
prevent environmental damage is further reinforced by
the statutory context in which the issue arose. A court’s
equitable discretion must be guided by “recognized, de
fined public policy.” Meredith v. Winter Haven, 320 U. S.
228, 235 (1943); see also Hecht Co. v. Bowles, 321 U. S.
321, 331 (1944) (explaining that when a court evaluates an
agency’s decision against the background of a federal
statute, the court’s discretion “must be exercised in light of
the large objectives of the Act”). Congress recognized in
NEPA that complex environmental cases often require
exceptionally sophisticated scientific determinations, and
that agency decisions should not be made on the basis of
“incomplete information.” Marsh v. Oregon Natural Re
sources Council, 490 U. S. 360, 371 (1989). Congress also
recognized that agencies cannot fully weigh the conse
quences of these decisions without obtaining public com
ments through an EIS. See Robertson v. Methow Valley
Citizens Council, 490 U. S. 332, 350 (1989).15 While a
court may not presume that a NEPA violation requires an
injunction, it may take into account the principles embod
——————
14 I suspect that if APHIS and petitioners had come back to the court
with more convincing evidence prior to completing an EIS, and moved
to modify the court’s order, the court would have done so. Indeed, the
District Court showed a willingness to recalibrate its order when it
amended its judgment just a few months after the judgment’s issuance
in light of APHIS’s submission that certain requirements were imprac
tical. See App. to Pet. for Cert. 111a–114a.
15 Accordingly, while “NEPA itself does not mandate particular re
sults,” it does mandate a particular process and embodies the principle
that federal agencies should “carefully conside[r] detailed information”
before incurring potential environmental harm. Robertson, 490 U. S.,
at 350, 349.
Cite as: 561 U. S. ____ (2010) 19
STEVENS, J., dissenting
ied in the statute in considering whether an injunction
would be appropriate. This District Court had before it
strong evidence that gene transmission was likely to occur
and that limits on growing could not be enforced. It also
had a large amount of highly detailed evidence about
whether growing restrictions, even if enforced, can prevent
transmission. That evidence called into question the
agency’s own claims regarding the risks posed by partial
deregulation. In enjoining partial deregulation until it
had the benefit of an EIS to help parse the evidence, the
court acted with exactly the sort of caution that Congress
endorsed in NEPA.
Finally, it bears mention that the District Court’s ex
perience with the case may have given it grounds for
skepticism about the representations made by APHIS and
petitioners. Sometimes “one judicial actor is better posi
tioned than another to decide the issue in question.”
Miller v. Fenton, 474 U. S. 104, 114 (1985). A “district
court may have insights not conveyed by the record.”
Pierce v. Underwood, 487 U. S. 552, 560 (1988). In this
case, the agency had attempted to deregulate RRA without
an EIS in spite of ample evidence of potential environ
mental harms. And when the court made clear that the
agency had violated NEPA, the agency responded by
seeking to “ ‘streamline’ ” the process, ante, at 18, submit
ting a deregulation proposal with Monsanto that suffered
from some of the same legal and empirical holes as its
initial plan to deregulate. Against that background, the
court may have felt it especially prudent to wait for an EIS
before concluding that APHIS could manage RRA’s threat
to the environment.
* * *
The District Court in this case was put in an “unenvi
able position.” Ibid. In front of it was strong evidence
that RRA poses a serious threat to the environment and to
20 MONSANTO CO. v. GEERTSON SEED FARMS
STEVENS, J., dissenting
American business, and that limits on RRA deregulation
might not be followed or enforced—and that even if they
were, the newly engineered gene might nevertheless
spread to other crops. Confronted with those disconcert
ing submissions, with APHIS’s unlawful deregulation
decision, with a group of farmers who had staked their
livelihoods on APHIS’s decision, and with a federal statute
that prizes informed decisionmaking on matters that
seriously affect the environment, the court did the best it
could. In my view, the District Court was well within its
discretion to order the remedy that the Court now re
verses. Accordingly, I respectfully dissent.