MONSANTO CO. v. GEERTSON SEED FARMS

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ORAL ARGUMENT OF GREGORY G. GARRE ON BEHALF OF THE PETITIONERS

Chief Justice John G. Roberts: We'll hear argument this morning in Case 09-475, Monsanto Company v. Geertson Seed Farms, et al. Mr. Garre.

Mr. Garre: Thank you, Mr. Chief Justice, and may it please the Court: Biotech crops have produced enormous benefits for the nation's farmers and consumers.

The district court in this case issued a broad-based injunction against the planting of a highly beneficial, genetically engineered alfalfa crop.

In entering and sustaining that injunction, the courts below erred in two fundamental respects.

First, they short-circuited the requisite inquiry into the likelihood of reparable -- irreparable harm, because they reasoned that the agency was going to get into this anyway in the course of preparing its environmental impact statement.

And--

Justice Samuel Alito: Mr. Garre, the Respondents argue that we should dismiss the writ here as improvidently granted, and I wonder if you could explain why that isn't the preferred course of conduct.

They contend that when this was before the Ninth Circuit, your firm could have but did not contest the -- the vacatur of the APHIS deregulation order.

It's argued that an environmental impact statement is likely to be issued very soon, or fairly soon.

Maybe the Solicitor General could give us an estimate.

If we agree with your argument that the Ninth Circuit applied the wrong preliminary injunction standard and remand for them to apply the right preliminary injunction standard, the case may be moot by the time they do that.

And the alternative is for us to plow into the extremely fact-bound question whether applying what you contend to be the correct preliminary injunction standard of relief would be warranted on this record.

In light of all that, why shouldn't we take their suggestion?

Mr. Garre: --The Court shouldn't, Justice Alito.

First as to the vacatur, we appealed the judgment that contains the vacatur and the injunction.

And our notice of appeal, which is on page 59 and 61 of the excerpts of record in the Ninth Circuit, makes clear that we explicitly appealed the vacatur as well.

And let me explain that a little bit more, but first I want to say as to the environmental impact statement, the government can address that more, but my understanding is that we're probably about a year away from the environmental impact statement.

This case presents important legal issues concerning the entry of injunctive relief.

We think the Court properly granted certiorari and should decide those issues.

We think that, although the record is large, that this Court can decide, as it did in Winter, that as a matter of law this record does not support a finding of irreparable harm--

Justice Ruth Bader Ginsburg: But Winter didn't involve something -- as I understand, the -- the decision vacated the deregulation order.

You are not challenging that.

Well, it seems to me if there's no deregulation decision in place, then we're back to the Plant Protection Act, and there's no authorization for the planting of these crops.

So as long as you haven't challenged the vacation of the deregulation decision, I don't see how there's anything for us to deal with.

Mr. Garre: --We did appeal the vacatur as well as the injunction which is contained as part of the same judgment.

We know that the district--

Justice Sonia Sotomayor: However, you haven't in your brief.

Didn't you say you weren't challenging the vacating order?

You keep saying -- I know you appealed it originally, but the point is that you didn't seek certiorari on that ground.

Mr. Garre: --Well, we -- our argument all along, Justice Sotomayor has been that the court, the district court, erred in not adopting the government's proposed judgment.

If you look on page 184 of the petition appendix, that proposed judgment makes clear that it's intended to replace the district court's judgment, including the vacatur.

So all along the whole argument about--

Chief Justice John G. Roberts: You agree that those are two different things, then, right?

The vacatur is one thing and the injunction is another, right?

Mr. Garre: --They are part and parcel of the same judgment.

It's true, a vacatur is different than an injunction.

But here--

Chief Justice John G. Roberts: And under the vacatur, the normal APA remedy is a remand to the agency.

In fact, there are some courts that say you can't get anything else.

But whether you can or can't, it's clear that the burden is on you to get something short of complete remand.

The burden is on your friends to get -- establish the injunction.

The problem with combining the two, it seems to me, is that you are imposing on them the burden to meet the injunction standard simply to get a remand to which they are entitled under the APA.

Mr. Garre: --Well, the district court could have vacated the order in its entirety and send it back to the agency.

It didn't do that.

It not only went ahead and enjoined the planting of RRA, Roundup Ready alfalfa, but--

Chief Justice John G. Roberts: But the vacatur does that.

You can't plant once the deregulation order is vacated.

Mr. Garre: --The vacatur was in part.

We know that because the district court's judgment allowed the continued planting and harvesting of Roundup Ready alfalfa, the planting before 2007.

But--

Chief Justice John G. Roberts: So you would say that the injunction is limited only to a decision the agency might make to allow partial planting?

Mr. Garre: --Well -- and importantly, the district court's judgment -- and it's on page 108 of the petition appendix--

Chief Justice John G. Roberts: Right.

Mr. Garre: --not only enjoined the planting of Roundup Ready alfalfa, it enjoined the agency from taking interim measures.

It--

Chief Justice John G. Roberts: Right.

Mr. Garre: --We--

Chief Justice John G. Roberts: Right.

Why did it do that?

I mean, the way the APA works, this is sent back to the agency.

If the agency wants to partially deregulate, it can do it.

And then you can challenge it under the normal APA procedures.

Mr. Garre: --And that--

Chief Justice John G. Roberts: It's very odd to get an injunction to an agency telling them they can't do something under the APA.

Mr. Garre: --Well, I'm not going to disagree with you on that.

It is important that they enjoined the agency from implementing the very proposed measures that we're now finding -- fighting--

Justice Ruth Bader Ginsburg: I'm looking at--

Mr. Garre: --in the context of an injunction.

Justice Ruth Bader Ginsburg: --I'm looking at page 58a.

Maybe that -- you referred to what as the district court's--

Mr. Garre: 108a.

It's 108a of the petition appendix.

Justice Ruth Bader Ginsburg: --Because I thought that the only purpose of this injunctive provision was to spare the people who had already purchased seeds, allowing those to be planted until March 30, 2007.

Mr. Garre: Planting was allowed until March 30, 2007, and then that alfalfa could be continued to be harvested; seeds would be harvested and maintained separately.

Justice Anthony Kennedy: And is it your position that that gives you the hook, the entry point, for saying, well, now the district judge didn't just replicate in all respects the universe without the regulation; it had some specific injunctive relief, and it didn't go far enough?

That's--

Mr. Garre: Absolutely.

That in combination with the fact that it actually enjoined the agency from what it could have done, otherwise done, under--

Justice Sonia Sotomayor: But whose--

Chief Justice John G. Roberts: What authority do you have for the proposition that when a court vacates an administrative order, it has the authority to tailor an injunction rather than simply remand the matter to the agency?

Mr. Garre: --Well, I think this Court's decision in Weinberger involved at least an analogous situation, where the court found a statutory violation of the Clean Water Act.

It didn't involve the vacatur of a decision, but the court then went on to add an injunction on top of that.

So you had the statutory violation that arguably prohibited the conduct--

Chief Justice John G. Roberts: I guess -- Weinberger, of course, involved a statute.

I mean, the concern is that the authority to determine how far to go in deregulating or partial deregulating is for the agency to make.

And once there has been a violation of the APA, it goes back to the agency.

What the district court did here was assume that responsibility itself.

Mr. Garre: --And we at the outset at the district court stage, if the -- if the district court had done that, that would have been fine.

It could have gone back.

The agency could have adopted the very proposed measures that we're now talking about in the context of an injunction.

The district court did not do that.

It entered the injunction not only as to the sale of RRA, but as to the agency taking--

Justice Ruth Bader Ginsburg: Well, then--

Mr. Garre: --those interim steps.

Justice Ruth Bader Ginsburg: --Mr. Garre, I'm looking at the injunction, and it says that the deregulation decision is vacated and Roundup Ready alfalfa is once again a regulated article.

We could simply say as far as it goes, that's all right; anything else is surplusage.

We take it to be the judgment that Roundup Ready alfalfa is once again a regulated article, period.

Mr. Garre: And we know the district court didn't mean that literally, because its own judgment allows the continued planting and harvesting of RRA planted before--

Justice Ruth Bader Ginsburg: Well, but I thought--

Mr. Garre: --March 2007.

Justice Ruth Bader Ginsburg: --I thought that was just a dispensation to people who had already bought the seeds.

That was recognizing that they had incurred an expense, that they were all ready to plant.

That -- that was the only exception.

It goes back to the status of a regulated article with this one exception.

Mr. Garre: Well, if it's a regulated article, then there's no use of it allowed at all unless the agency is granting exceptions.

So the district court's grant of that exception was an exercise of its equitable authority in the context of considering Respondents' injunction.

Respondents have litigated this all along as though the injunction provided something in addition to the vacatur, and this Court's cases establish that the injunction is an extraordinary and drastic remedy that does.

It allows people to go into court to enforce it.

It provides an opportunity for contempt sanctions.

If I could just -- if I could address the issue of irreparable harm, there are two key things the Court -- we hope the Court will understand in adjudicating the question of irreparable harm.

First is you need to separate out hay production and seed production.

There's absolutely no evidence in this record whatsoever of any cross-pollination from RRA hay fields to another hay field.

So the district court's injunction applies broad-based to hay production and seed production.

But at a minimum, we think you have to take seed production out.

The next thing is that, when it comes to the risk of harm--

Justice Antonin Scalia: Hay production out.

Mr. Garre: --When alfalfa is grown for hay, for forage, as opposed to grown for seeds which can then be planted.

The next thing to know is what we're talking about here is the risk that -- and Roundup Ready alfalfa will appear in a conventional or organic alfalfa field.

We're not talking about transforming a single alfalfa plant in the country.

It's the risk that an existing alfalfa plant will produce a seed, which will then produce another alfalfa plant which would be a Roundup Ready alfalfa plant.

So not a single alfalfa plant in this country is going to be harmed by the addition of Roundup Ready alfalfa.

The district court found, on page 43 of the petition appendix, that Roundup Ready alfalfa provides no harm the--

Justice Sonia Sotomayor: --Could you tell me what's the legal error?

You started by identifying the first one, which was short-circuiting the irreparable harm.

This seems more like factual correction which you're getting into.

Put it into a legal box for me.

What are your legal claims?

Mr. Garre: --Sure.

There's three legal arguments we have, Justice Sotomayor.

The first is the district court short-circuited the whole analysis by assuming up front that, since this was going to go to environmental impact statement, it didn't have to seriously get into the likelihood of irreparable harm.

And we think that that's clear error under this Court's Amoco decision.

And, in fact, if you look at--

Justice Ruth Bader Ginsburg: Would you explain, Mr. Garre, why that's so, because I thought that the Federal law is before the agency engages in an action that requires an EIS, it has to do the EIS?

So this unit of the Department of Agriculture violated Federal law by deregulating prior to the completion of an EIS.

Mr. Garre: --Federal law and the regulation at 40 C.F.R. 1506.1(a) allows action to go forward where there's not an adverse environmental impact.

The agency has explained in great detail in declarations that allowing the very limited use of RRA under the restricted conditions of the proposed injunctions would not result in any environmental impact.

If I could reserve the remainder of my time for rebuttal.

Chief Justice John G. Roberts: Thank you, Mr. Garre.

Mr. Stewart.

ORAL ARGUMENT OF MALCOLM L. STEWART, ON BEHALF OF THE FEDERAL RESPONDENTS, SUPPORTING PETITIONERS

Mr. Stewart: Mr. Chief Justice, and may it please the Court: I'd like first to address briefly Justice Alito's question about the length of time that the agency anticipates the EIS will take.

The agency now anticipates that its best estimate is that the EIS will be ready approximately a year from now.

A draft--

EIS has been submitted for public comment.

The public comment period was extended until early March of 2010.

The agency has received on the order of 145,000 public comments.

And, so, in addition to parsing through those and seeing which of them need to be responded to, the agency wants to consult with other Federal agencies.

And, so this process is going to take longer than APHIS had anticipated at the outset.

Now, we said in our brief in opposition that the fact that the EIS process was ongoing was a reason for this Court to deny certiorari.

I think regardless of how good an argument that was at the cert stage, the Court has granted cert, and we think that the Court should decide the case.

There's no realistic prospect that the case will become moot before this Court's decision is rendered.

Justice Sonia Sotomayor: Could you go to the second part of Justice Alito's question, which was the issue of standing, both yours and the Petitioners'.

What is it exactly that we're being asked to review?

Obviously, you're going ahead with the EIS.

You haven't sought a stay of that.

Mr. Stewart: That's correct.

Justice Sonia Sotomayor: All right.

So what's the basis of the challenge to the injunction?

Mr. Stewart: When the district court issued its summary judgment ruling, it asked the parties to propose their own forms of a judgment.

And APHIS might have done what the Chief Justice suggested ought to have been done; that is, it might have indicated that the court -- that either it should simply issue a declaratory judgment or that it should vacate the deregulation order, and the matter would have been remanded to the agency to decide what to do next.

And if that had happened, the agency could then have issued an administrative order that embodied the same proposed conditions that were embodied in the injunction.

Presumably, the plaintiffs would have challenged that, and we would have had a new lawsuit.

Now, what APHIS tried to do, in essence, was to streamline the process by combining into one steps that could otherwise have been taken separately.

And it proposed an injunction that said the deregulation decision is vacated and replaced by the following protective conditions.

Chief Justice John G. Roberts: You have the burden to establish your entitlement to those conditions that are short of a remand, correct?

Mr. Stewart: I don't think it would have been our burden; that is, if the -- if the order had simply been -- the deregulation order had simply been vacated and remanded to the agency, and the agency had then performed the analysis that's reflected in the Hoffman declarations and said we are putting in place a complete deregulation--

Chief Justice John G. Roberts: Sure, sure.

Agencies can do that.

Mr. Stewart: --Agencies can do that.

And it -- on review of that, it would not have been our burden to establish that those--

Chief Justice John G. Roberts: Well, sure, because -- but here the question is whether the court can do that.

The court is stepping into the shoes of the agency.

And I would say it's -- I mean, there's authority that you can't do that at all, but certainly you'd have the burden to establish that those reliefs short of remand, that you are entitled to that.

Mr. Stewart: --I think in the ordinary course, you're absolutely correct.

And in the usual case, it's an important principle to us that the court should not usurp the agency's role.

Here I think, in fairness to the district court, if the court had issued the injunction we proposed with the protective measures that were reflected in the government's proposed judgment, the court would not have been usurping the agency's role, because it would have been adopting the very protective measures that the agency identified as appropriate.

So we think that the district--

Chief Justice John G. Roberts: Well, you're short-circuiting notice and comment or whatever else is required, the reason we send this to an agency, because they are expert and all that.

The agency is acting without the benefit of any input on the partial deregulation.

Mr. Stewart: --Well, it is certainly acting with the benefit of whatever information it received in the form of public comment in its original environmental assessment for the complete deregulation.

And in addition, the district court, in deciding whether the agency's proposed conditions would have been appropriate could have entertained comments from obviously the Respondents and from anyone else who wanted to intervene.

But to go back to Justice Sotomayor's--

Justice Sonia Sotomayor: Could you have -- let's just -- if this had -- if the order had vacated the deregulation and sent it back to you, what would you have -- the agency have had to do to issue temporary regulations consistent with the ones you proposed to the district court?

Mr. Stewart: --Our view is that, first, that we would not have had to go through public notice and comment, because, under 5 U.S.C. 553(b)(2), there is an exception for good cause, and here the relatively limited timeframe that we were talking about in our view would have constituted good cause.

Obviously, the plaintiffs might have challenged that.

Now, we would have had to perform some sort of environmental analysis to comply with our NEPA obligations in order to feel sufficient confident -- confidence that implementation of our proposed measures would not cause significant environmental impacts.

It wouldn't have had to be an EIS; that is, NEPA provides, in appropriate circumstances--

Justice Ruth Bader Ginsburg: Can -- when you -- can you stop right there, because I thought the law was, government agency, before you engage on a major activity, EIS first, and then you can have a deregulation order?

Mr. Stewart: --I think that's -- it is correct to say that, as a matter of the statute and the regulations, an agency cannot decide to prepare an EIS on a particular act, decision, and then implement that very decision during the pendency of the EIS.

Justice Ruth Bader Ginsburg: Yes, that's what I thought.

Mr. Stewart: But our -- our core point here is that what we were proposing for the interim, that is allowing continued planting subject to various protective measures, was fundamentally different from the action on which the EIS was being prepared.

That is--

Justice Ruth Bader Ginsburg: But as far as the court is concerned, it's conceded that NEPA was violated, an EIS was required.

And then the district court vacates the deregulation decision.

I thought that, under the APA, at that point, the court is obliged to say, well, the agency engaged in conduct that was not in accord with law, and so we send it back.

Mr. Stewart: --You are correct.

And we are not asserting the right to implement the deregulation decision; that is, the decision removing all Federal constraints from the planting and harvesting of RRA.

We're not asserting the right to do that during the pendency of the EIS process.

The CEQ regulations speak to this question, and they don't say while an EIS is ongoing, no activity related to the action for which the EIS is being prepared may go forward.

They say in the interim the agency can't do things that will have an adverse environmental impact or will foreclose reasonable alternatives.

So, what the agency might have done at the outset was say: We need to do an EIS before implementing a complete deregulation decision.

The effects of doing that are at least potentially sufficiently great that an EIS is being prepared.

However, we feel confident that interim planting during this limited period, subject to these proposed protective measures, will not have adverse environmental impact--

Chief Justice John G. Roberts: Do you -- do you agree that when you're talking about the elements of the injunction that are short of remand to the agency, that the Respondents do not have the obligation to meet the injunction standards with respect to those?

In other words, it's part of the judgment.

It's not an injunction, and you have the burden if you want the court to do anything other than send it back.

Mr. Stewart: --I hope I didn't misunderstand the question.

If you're referring to the types of activities that would have been prohibited even under our proposed injunction; that--

Chief Justice John G. Roberts: No, I'm talking to the -- about the types of activities that would be prohibited if the court just remanded it back, vacated it, which is everything -- you can't plant.

Mr. Stewart: --No, I think in order for the -- the plaintiffs to get an injunction against those, they would have had to meet--

Chief Justice John G. Roberts: I guess my point is they don't need an injunction.

The thing that's bothering me is you've got two different things, the vacatur and the injunction.

And it seems to me by melding them together, you're trying to impose the burden on the plaintiffs to meet the injunction standard to get the benefit of the vacatur.

Mr. Stewart: --Well, I think if this had happened through the alternative events -- course of events that I discussed previously; that is, if the matter had been remanded back to the agency and the agency had issued an administrative order that embodied these proposed protective conditions, then the plaintiffs would presumably have either filed a new lawsuit or challenged this within the confines of this suit.

The burden would have been on them to show both that those protective measures were--

Justice Sonia Sotomayor: But you short-circuited that.

Isn't this more akin to you seeking a stay of the vacating order?

Mr. Stewart: --Well, I think--

Justice Sonia Sotomayor: The district court vacated the deregulation.

No one can plant.

You and the Petitioners go into court and say to the court: Stay that deregulation with respect to this kind of planting.

Aren't you the one seeking the stay?

And if so, isn't it your burden to show that you're entitled to whatever it is you seek?

Mr. Stewart: --Well, all that the court had decided up to the point when we submitted our proposed judgment was that an EIS was needed before the agency could implement complete deregulation.

And I think in this respect the case is similar to Winter; that is, in Winter in the district court -- the district court initially imposed six restrictive measures on the Navy, and the Navy elected not to challenge four of them but challenged the other two.

I suppose that the Navy could have asked for, in a sense, vacatur of its proposed action and then announced a new action that consisted of compliance with the four unchallenged restrictive measures and noncompliance with the other two.

From our perspective, rather than short-circuiting the process, as I say, we were trying to streamline it; that is, the court could have sent it back to us, we could have told it what protective measures were appropriate, and then some months later we would have been back in court to review the adequacy of those, particularly because we thought of the -- any injunction as being something that would stay in effect only for the relatively limited period of time while the EIS was being prepared.

We tried to speed up the process by telling the court in advance these are the protective measures we think are appropriate without the need for a remand.

And the court's fundamental error was in equating what we had proposed with the complete deregulation that was the subject of the lawsuit.

I think that the -- the agency's declarations explained why the protective measures that were embodied in the government's proposed injunction would have been fully sufficient to prevent irreparable harm to the plaintiffs during the pendency of the EIS--

Justice Sonia Sotomayor: So that's the legal error you identify?

Mr. Stewart: --That's the legal error we identify.

We also think that the district court did, without quite using these words, announce a presumption in favor of injunctive relief; that is, the district court said, wrongly in our view, that it couldn't assess the adequacy of the proposed protective measures because that would duplicate the analysis that was going on in the EIS.

We think that was--

Justice Ruth Bader Ginsburg: Do you agree -- would you agree that if the district court had just said the deregulating decision is vacated and Roundup Ready alfalfa is once again a regulated article, period, that would be okay?

And you would have no basis to prevent this from going straight back to the agency?

Mr. Stewart: --I think the district court could have done that and, as I say, if -- if the--

Justice Ruth Bader Ginsburg: And all, it seems to me, that the district court did do in addition to that is to say that alfalfa seeds may be planted -- alfalfa seeds that are -- that have already been purchased may be planted prior to March 30, 2007.

Mr. Stewart: --If it--

Justice Ruth Bader Ginsburg: It's the only exception.

Mr. Stewart: --It didn't just say that.

In its judgment, which I believe is at page 108a of the petition appendix -- and Mr. Garre referred to this previously -- it said in addition that the agency is enjoined from deregulating even in part genetically engineered alfalfa.

So the district court didn't simply vacate the -- the deregulation order and send it back to the agency to decide whether some interim protective measures would be appropriate.

It said the agency can't do anything while the EIS is being prepared to allow the planting or harvesting of RRA except to the limited extent that the district court was authorizing with respect to already planted alfalfa.

Justice Anthony Kennedy: And in your view the correctness of that ruling has been preserved in the questions presented to this Court?

Mr. Stewart: Yes, I think -- yes, I think absolutely.

Because the fundamental controversy both in the court of appeals and in this Court has been not whether an injunction should have been entered at all.

For better or for worse, I think both the Petitioners and the government have acquiesced in the entry of some form of injunction.

The controversy has been, should the district court have entered the government's proposed injunction instead of the one that it actually entered?

And clearly if the proposed injunction had been entered instead, the Petitioners would have been better off because there would have been a continued market for their seed to planters who wanted to grow RRA in compliance with the proposed protective measures.

Justice Sonia Sotomayor: That's a little different than answering Justice Kennedy's question, which is: Did you preserve the issue that the district court exceeded its jurisdiction in stopping you from further deregulation?

That's a different question than whether or not it should have granted your further injunction which is, according to you, a further deregulation.

But it's a different question.

Mr. Stewart: I'm not sure to what extent the Petitioners or -- or the government, frankly, have focused precisely on that particular language of the district court's judgment.

But it has certainly been kind of the fundamental basis for our appeal to the court of appeals and for Petitioners' appeal and certiorari petition that what they are complaining about was the fact that a complete injunction was put in place, instead of an injunction that embodied the government's proposed protective measures, and we were focusing on the choice between two injunctions.

We didn't focus specifically on the alternative course of action in which the matter might have been sent back to the agency and the agency would then have embodied those proposed protective measures in an administrative order.

But I think the issue whether those protective measures would have been sufficient to prevent irreparable harm to the plaintiffs has been preserved throughout.

Just to say one more thing about the CEQ regulations, this Court has held in the past that those are entitled to deference, and, again, they don't preclude all action during the pendency of the EIS.

Chief Justice John G. Roberts: Thank you, Mr. Stewart.

Mr. Robbins.

ORAL ARGUMENT OF LAWRENCE S. ROBBINS ON BEHALF OF THE RESPONDENTS

Mr. Robbins: Thank you, Mr. Chief Justice, and may it please the Court: In our view, Petitioners lack standing to bring this case to this Court.

By failing to challenge the lawfulness of the deregulation vacatur either in the Ninth Circuit or in this Court, Petitioners have an insurmountable redressability problem.

They cannot get the practical relief they seek even in the event that this Court vacates or narrows the injunction, and that is because the vacatur about which they said not one single sentence in the Ninth Circuit or in their opening brief or in their questions presented -- that is because the vacatur, which they never have challenged, had the unambiguous effect of reregulating RRA.

Chief Justice John G. Roberts: So if the injunction doesn't do anything, why are you bothering to defend it?

Mr. Robbins: Well, we're -- we're defending it on the alternative ground, Mr. Chief Justice, that we have not persuaded you on our threshold question that there -- that there is a lack of standing.

If, for -- I mean, they've made various arguments as to why they have standing, and I'm going to address them in a minute.

But, you know, there's always a chance we're going to lose on that question--

[Laughter]

--and -- and although I don't think we ought to, we thought it would be prudent to say something about the merits.

Justice Antonin Scalia: Mr. Robbins, can I ask you about your clients' standing?

What individual plaintiff here stood to be harmed by what the agency had done?

Which one of them was -- was within, what, 5 miles of any -- any field of the genetically engineered alfalfa?

Mr. Robbins: Well, the answer is that there are a great many plaintiffs who put in declarations, litigated this issue, and prevailed, and there was no appeal from it.

For example, in the courtroom today, Mr. Pat Trask from western South Dakota, a hay and -- a conventional hay and seed farmer, who alleged, put in proof, that he stood -- if the deregulation went forward without any injunction, he stood to -- a risk of cross-pollination and contamination--

Justice Antonin Scalia: What?

From what?

From what?

From--

Mr. Robbins: --From--

Justice Antonin Scalia: --From somebody within 5 miles, 10 miles, 20 miles?

Mr. Robbins: --Well, we have to be clear, Your Honor.

What -- what -- what was enjoined was the future proliferation of this product, where the president of the company told the district court: If you let us continue to 220,000 acres; we will become a million acres, a fivefold increase.

And that was on the assumption that the EIS would take only 2 years.

It's since been 3 years, and now I hear it's going to be a fourth year.

Justice Antonin Scalia: So you want the Court to assume that somebody is going to be planting a field of the genetically engineered alfalfa within, what, 5 miles of--

Mr. Robbins: Well--

Justice Antonin Scalia: --one of your named plaintiffs?

Mr. Robbins: --Well--

Justice Antonin Scalia: The fact is there isn't a single named plaintiff who -- who has -- has any claim that within the utmost limits of -- of risk, he is at risk currently.

Mr. Robbins: --Well, let me be clear.

We have organizational clients who have -- whose members--

Justice Antonin Scalia: I understand that.

But you have to bring in a member from that organization--

Mr. Robbins: --That's correct.

Justice Antonin Scalia: --who is concretely harmed.

Mr. Robbins: And we've put in declarations in the district court, multiple declarations from those members and from Mr. Geertson, the seed -- conventional seed farmer from Idaho, and Mr. Trask from South Dakota.

But, Your Honor, let me -- let me, without begging the question -- I actually think -- I'm sorry.

Justice Sonia Sotomayor: Am I factually correct that the harm is that from some seed-grown alfalfa, a bee or the wind is going to take the pollen and put it into a conventional field?

Mr. Robbins: That is one of the risks.

But what makes this case--

Justice Sonia Sotomayor: But is that -- am I right?

Mr. Robbins: --Yes.

One of the risks is cross-pollination--

Justice Sonia Sotomayor: How many States grow alfalfa to seed as opposed to letting it just grow into hay?

Mr. Robbins: --Most of the seed production is in the -- is in the Pacific Northwest and the West.

There's a handful of States.

Justice Sonia Sotomayor: So that handful of States--

Mr. Robbins: Yes.

Justice Sonia Sotomayor: --is that where the risk exists?

Mr. Robbins: No.

Oh, no, no.

The risk was demonstrated at different levels and to different degrees both in the hay-producing States and in the seed-producing States.

Justice Sonia Sotomayor: You just said the word "different levels and different degrees", but this is an all-size-fit injunction.

Mr. Robbins: Yes.

Because, as I--

Justice Sonia Sotomayor: So how is that reasonable when the risk is different depending on the place and type of growth?

Mr. Robbins: --Well, there are different kinds of risks.

And I am happy to turn to the irreparable harm point, Your Honor, of the proposition that the risk must be sufficiently likely, which by the way, does not mean more likely than not, a suggestion made in the reply brief.

No court has ever said so.

"Sufficiently likely" talks in terms of the nature of the harm.

Here, whether you are growing hay or whether you are growing alfalfa for seed, there is a sufficiently likely risk not only of cross-pollination or all the other ways that contamination happens -- through dropping seeds, through seed mixing, through custom cutting, through missing ends of fields--

Justice Sonia Sotomayor: Could I ask you something?

Is that because your farmers -- I understood farmers of hay had huge tracts of land.

Do they rent equipment from someone else to do it?

Mr. Robbins: --They often do.

There's custom cutting where you can't -- you know, you don't own the equipment.

You hire a custom cutter who may be cutting an RRA field today and your field tomorrow.

And the -- the risk -- and this is all in the record -- the risk of a seed contaminating another seed or getting into a hay field is easily sufficiently likely to not constitute an abuse of discretion--

Justice Antonin Scalia: You -- you don't think the free market would produce companies that advertise: We only cut natural seed fields?

Mr. Robbins: --Well--

Justice Antonin Scalia: You don't think that would happen?

I am sure it would happen.

Mr. Robbins: --Well, the -- well, the record, Justice Scalia, before the district court does not tell us one way or the other, but the--

Justice Ruth Bader Ginsburg: Mr. Robbins, is it -- is it relevant to that, that in the case of other genetically engineered crops -- sugar beets, for example, soybeans -- that the plantings became overwhelmingly the genetically engineered, rather than the organic or natural?

Mr. Robbins: --Well, I think it's relevant to one of the categories of harms that we think is cognizable for purposes of an injunction, and that is the effect on consumer choice and producer choice to be in a non-GMO business.

And--

Justice Ruth Bader Ginsburg: I mean, in response to Justice Scalia's point of how many now, how many at this moment?

But you projected that there would be an enormous increase, and that was not just pulled out of thin air.

I assume it had something to do with what happened to other crops.

Mr. Robbins: --Oh, it's -- it's -- not only, Justice Ginsburg, is it not pulled out of thin air, we're taking their word for it.

Their president, FGI's president, said: We anticipate a fivefold increase from 220,000 acres to a million.

And that was on the premise that the EIS was--

Chief Justice John G. Roberts: Just -- I'm sorry to interrupt.

Just from the seeds blowing in the wind?

Mr. Robbins: --No, from a range of contaminating sources.

It's--

Justice Antonin Scalia: I am really losing you now.

I thought he was referring to the number of farmers who would be planting and harvesting genetically engineered alfalfa.

Isn't that -- farmers who wanted to do it.

He was saying: We now have 200,000; we are going to have a million.

Mr. Robbins: --Well, no; I'm talking about acreage, Justice Scalia.

Justice Antonin Scalia: All right.

Acreage, whatever.

He's talking about acreage of farmers who plant and want to plant--

Mr. Robbins: Yes.

Justice Antonin Scalia: --genetically engineered seed.

Mr. Robbins: Correct.

Justice Antonin Scalia: He's not talking about how many unwilling farmers are going to have infected fields.

Mr. Robbins: No, I -- I understand.

Justice Antonin Scalia: Okay.

Mr. Robbins: But the -- but the--

Justice Antonin Scalia: Well, I'm not sure we understood.

[Laughter]

Mr. Robbins: --But I took -- I took Justice Ginsburg's question to be asking: What was the -- the relevant risk that the district court had to consider for purposes of irreparable harm?

And certainly one factor which powerfully distinguishes this case from the Court's decision in Winter is that, whereas the Navy had been running these exercises for some 40 years and there was a well-developed track record as a consequence, here this is a new technology that was about to spread at least fivefold over 2 years.

But I -- I do want to get back to the -- to what I think is the insurmountable problem that the -- that the Petitioners have on the issue of standing, because I heard Mr. Garre say this morning in answer to one of the Court's questions that the -- that the notice of appeal recited the vacatur as part of the notice of appeal.

That is true.

That is because the notice of appeal, like most notices of appeal that lawyers file, simply quoted the judgment.

But when you get to the papers -- the briefs, the questions presented, the argument, the oral argument, the questions presented in this Court, the opening brief, there is not a single word saying that the vacatur was wrong.

And that's important because, as I believe the Chief Justice was adverting before, the vacatur does not -- is not governed by the same injunctive standards.

Chief Justice John G. Roberts: But that -- there's a flip side of that that is not so good for you, because one of the things you want from the injunction is a prohibition on the agency partially deregulating.

Well, you're not entitled to that, because the vacatur sends it -- should send it back to the agency and they can decide.

And if they decide to partially deregulate, you have the APA challenges available to you.

Mr. Robbins: I -- I think, Mr. Chief Justice, there is some considerable force to the point that the injunction in that respect exceeded the scope of the vacatur.

And it may be -- it may be that they have standing only to challenge so much of the injunction as exceeds the scope of the vacatur, but that's not what they want.

What they want is to do all the planting that the vacatur says they may not.

And so I--

Chief Justice John G. Roberts: So your argument is that the district court judge made a mistake in mixing up the vacatur and the injunction?

Mr. Robbins: --I would put it slightly differently.

[Laughter]

I would say that the mistake that was made was in not appreciating, though it was called to his attention by the lawyers I -- by the party I represent, that the vacatur did have this effect.

I do think that the injunction was sort of allowed to be litigated.

There were many reasons why they litigated the injunction.

We, for example, wanted a more demanding injunction--

Justice Anthony Kennedy: But isn't one of the reasons that they litigated the injunction was that by its terms and because of its issuance the agency on remand could not have adopted some partial measures to allow controlled planting?

Mr. Robbins: --Yes.

That is a reason why my clients sought the injunction.

They sought -- they sought other things in the injunction as well, but--

Justice Anthony Kennedy: But -- no, but isn't that -- isn't that the reason that the manufacturers, Monsanto, contested the injunction?

They said -- because once the injunction is issued, as the government has told us today, they cannot issue some partial regulatory scheme with -- with safeguards.

Mr. Robbins: --There is -- that's doubtless one reason why they litigated the injunction, but it is not a reason, Justice Kennedy, that they have standing, because vacating the current injunction will give them nothing that they -- that they -- that isn't already prohibited by the vacatur, except -- and I grant you this -- it will allow them to go back to the agency, seek a partial deregulation, which Mr. Stewart told--

Justice Anthony Kennedy: But that -- but that is substantial.

It takes time, and the district court injunction that's now in effect prohibits that.

And they have standing to challenge that.

Mr. Robbins: --Well, I'm not--

Justice Anthony Kennedy: Or at least that's their argument.

Mr. Robbins: --That is their argument, but it isn't right, and here's why: One of the standing requirements is imminence, that it must be an actual harm or an imminent harm.

Now, here are the things that would have to happen for that scenario to come to pass: It would have to be remanded to the agency.

Mr. Stewart told us this morning there would have to be at least an environmental -- an EA prepared, that may or may not come out in favor of a partial deregulation.

There would then be--

Chief Justice John G. Roberts: I don't mean to interrupt your answer, but they've already done an EA in support of total deregulation, presumably, and they found no adverse -- presumably, that would be a fortiori for partial.

Mr. Robbins: --Well, we don't know.

I heard Mr. Stewart, who speaks for the government, tell us that it would require additional steps.

But this Court's imminence cases, you know, can't -- do not accommodate this many if's.

Justice Antonin Scalia: It seems to me pretty doggone imminent if the agency has come before the court and said: This kind of partial deregulation ought to be allowed, and we're in favor of it.

I mean, you are not sending it back to an agency that's a blank slate.

You know that the agency favors this degree of deregulation.

Mr. Robbins: Right.

Justice Antonin Scalia: I mean -- I'd -- you know, I -- boy, I'd take a remand to the agency any day.

Mr. Robbins: Well, I can -- I can tell you, Your Honor, maybe the best authority I could give you on how imminent this is, how -- whether it really meets this Court's standings tests, here's what Petitioners said about this exact scenario when they were in the court of appeals: They said that the prospect of a future grant of partial deregulation is, quote, NEPA controversy> ["], end quote, that, quote,

"rests upon contingent future events that may not occur as anticipated or, indeed, may not occur at all. "

I take that to be the very definition of what is not imminent for purposes of this Court's standing cases.

Chief Justice John G. Roberts: Could I go back to something you said a while ago, that "likely" does not mean more likely than not?

Mr. Robbins: Yes.

Chief Justice John G. Roberts: It's -- I thought that would be obvious.

If I say your friends are likely to win, that means they are more likely than you.

Mr. Robbins: Well, I -- I -- you know, I think the -- the answer is contextual, but in this context, Mr. Chief Justice, has I think never been understood to mean more likely than not.

Chief Justice John G. Roberts: Do you have -- I -- I was surprised that this apparently hasn't been decided over the however many years we've had this standard.

Is there a case that says "likely" does not mean more likely than not?

Mr. Robbins: No.

But there are cases -- I mean, the issue has not been addressed by this Court one way or the other.

I would say City of Los Angeles v. Lyons and the Amoco case both used the phrase "sufficiently likely", and the lower courts have understood that to mean sufficiently likely in light of the nature of the harm.

Consider, if we were talking about the probability of the contamination of the water supply of New York City, would anybody suppose that the -- if the probability were 10 percent rather than 50.9 percent, that no one could go into court and get an injunction?

Neither the private litigants -- you know, put them to one side.

The government's own authority to obtain injunctive relief would be critically hampered if such an order came about, and--

Justice Antonin Scalia: This isn't contamination of the New York City water supply.

It's the creation of plants of -- of genetically engineered alfalfa which spring up that otherwise wouldn't exist.

It doesn't even destroy the current plantings of non-genetically engineered alfalfa.

This is not the end of the world.

It really isn't.

The most it does is make it difficult for those farmers who want to cater to the European market, which will not accept genetically engineered alfalfa.

It makes it more difficult for them to have a field of 100 percent non-genetically engineered.

But that's not the end of the world, Mr. Robbins.

Mr. Robbins: --I don't think we bore the burden, an end-of-the-world burden, Justice Scalia.

[Laughter]

We bore the burden to show sufficient evidence of irreparable harm such that, on an abuse of discretion standard, it was appropriate.

But let me--

Justice Antonin Scalia: I thought you were comparing it to New York City dying--

Mr. Robbins: --No.

No, I was--

Justice Antonin Scalia: --from poisoned water?

[Laughter]

Mr. Robbins: --I -- I thought -- I -- it had been my -- my -- it had been my purpose to simply try to suggest that it does not make sense to adopt a "more likely than not" standard for likelihood of success or likelihood of irreparable harm.

But I do -- if I could come to Your Honor's question about what the harm really is, there are three types of harms.

There is the contamination of products, and we've talked about that.

But there are two things we've not talked about.

One of them is the choice to be in a line of business that farmers and businessmen across this country have chosen to be in.

Some of them are in this courtroom today.

They have chosen organics or conventional farming that is GMO-free.

They have chosen to sell natural beef.

And they have chosen this in a rapidly growing, large business with dollars -- billions of dollars at stake.

You mention, for example, Justice Scalia, the European market.

That is just the tip of the iceberg.

The Japanese will not take -- which take, by the way, 75 percent of our alfalfa exports -- will not -- despite their formal government policy, will not take GMO products--

Justice Ruth Bader Ginsburg: Mr. Robbins, but if, as is likely -- I think the government told us that the EIS is about a year away, but that the EIS is going to say deregulate--

Mr. Robbins: --Yes.

Justice Ruth Bader Ginsburg: --is going to recommend a deregulation decision.

So we're talking about the -- whatever the farmers of organic or conventional -- they're only a year away from, so they will have to accept that there are other planters who want to do the genetically engineered crop.

Mr. Robbins: Well, I think history remains to be written about what will happen in response to that draft EIS that's a year away.

We'll see how it comes out.

But--

Justice Ruth Bader Ginsburg: But I think you yourself told us how it came out with other crops, that the genetically engineered crop was very popular and took over.

Mr. Robbins: --Yes, it's very popular, but it's also -- you know, past is prologue.

We've seen what happened with genetically engineered corn.

You can ask Taco Bell--

Chief Justice John G. Roberts: And that's a decision for the government to decide, APHIS, and their lawyer, Mr. Stewart, who is in the courtroom told us what the APHIS view is.

Mr. Robbins: --Yes.

I understand.

Justice Sonia Sotomayor: Excuse me, could you tell me, just to clarify one factual matter, the popularity of corn and the other genetically engineered crops, is that from contamination or is it just from -- from consumer choice; i.e., that that's what farmers like because it's easy to grow?

Justice Antonin Scalia: And what happened with corn?

You -- you -- you said -- gee, I was unaware -- I've been eating corn all this time.

[Laughter]

Mr. Robbins: Well, there's -- there was the so-called--

Justice Antonin Scalia: What happened with it?

Mr. Robbins: --There was the so-called StarLink controversy in which there was genetic contamination of corn.

There was genetic contamination of organic soybeans and organic canola in Canada.

There was.06 percent contamination of -- of -- of rice from genetically engineered rice that nearly -- that -- that cost the rice industry, as the rice growers' brief makes clear -- the amicus brief makes clear.

The fact is the judge had before him all of this evidence, and he said it is sufficiently likely to -- to constitute irreparable harm.

Now, Justice Ginsburg, it is correct that the draft EIS says this is coming.

So, in a year, 6 months, whenever it is, people may have to get ready for a brave -- for a -- for a different world if not a brave new world.

But it's worth looking at that draft EIS, because it is very candid about how different the world will look.

It tells us we know this is going to shut down the -- the export market.

We know that the Japanese and the Koreans and the Europeans won't buy your products.

We know this will hasten the consolidation of farming.

We know it will hasten the -- it will hasten the demise of organic farming, a rapidly developing business in this country--

Chief Justice John G. Roberts: All arguments you can make before HP -- APHIS and which presumably were made before APHIS--

Mr. Robbins: --Yes.

Chief Justice John G. Roberts: --and can be made before APHIS if this is remanded.

Mr. Robbins: Indeed--

Chief Justice John G. Roberts: It doesn't entitle you to an order saying APHIS can't do anything in the meantime.

Mr. Robbins: --I -- I agree that there is a respect in which the injunction goes beyond the vacatur, and I think, you know, there are arguments why the district court took that additional measure.

But I -- I think the upshot is that if that is the only respect that the injunction exceeds the limit of the vacatur, I don't understand how the Petitioners can possibly have standing to argue all the things that they argue, which is: We want to plant tomorrow.

We want to plant the next day.

We don't want to have to go back before the agency and let them do another EA.

We don't want to have more litigation over a partial deregulation.

We want to plant now.

That's their argument before this Court.

And that is precisely what the vacatur tells them independently they may not do, and they didn't challenge that.

They didn't and they haven't.

They didn't say a word until we brought it up in our bottom-side brief.

Then we heard about it.

And, Justice Kennedy, this is precisely the situation that was before this Court in Renne v. -- the California constitutional provision--

Justice Anthony Kennedy: Yes.

Mr. Robbins: --in which Your Honor wrote the opinion for the Court.

Where there are overlapping provisions, or for -- you know, two pieces of law that have overlapping effect, and you challenge one but not the other, you have a fatal redressability problem.

That's where we are today.

And I have not heard -- I mean, I understand that the vacatur was perhaps only in part because the judge in his discretion grandfathered certain pre-March 30 growers -- fine.

Maybe it was there for a partial vacatur.

But whatever form of the vacatur it was, they didn't challenge it.

Chief Justice John G. Roberts: Well, it's kind of artificial to separate the two out.

I mean, it's one judgment, and they say they're intertwined.

The injunction is based on the vacatur.

And so if they challenge the injunction, you can't say, well, they're not challenging the vacatur.

Mr. Robbins: Well, I -- I'm not sure that it's fair to say that the injunction is based on the vacatur.

But I do want to -- I do think, though, Mr. Chief Justice, that every appeal is from a judgment.

I mean, that's more or less -- excepting unusual circumstances, that's the only thing you can appeal.

But if I were, for example, appealing a criminal conviction, a judgment of conviction entered and sentence, and I raised only evidentiary arguments, and I fail to raise the sufficiency of the evidence, I -- I can't get a dismissal in the court of appeals, because I have -- I've failed to raise an issue.

And it will not avail me one whit to tell the court of appeals, well, gosh, I appealed the judgment, and the sufficiency of the evidence is embedded in the judgment.

No.

The way we appeal things in this country is we write sentences in our briefs about -- we write questions presented; we present questions to this Court.

And I will say that, although all manner of arguments have been smuggled under the tent through the camel's nose in this case, when I look at the questions presented in this case, you've got to really squint to find even some of the arguments they have made, much less this one, which they have not made.

Chief Justice John G. Roberts: Well, but we have to decide -- for you to prevail on that, we have to decide that the injunction does no more than the vacatur.

Mr. Robbins: No.

I think what we -- I think the question is whether the relief that they are seeking is separately prohibited by the vacatur and whether that excess, which may arguably go beyond the vacatur, is sufficiently imminent to meet this Court's standing cases.

Chief Justice John G. Roberts: So -- so the district judge was wrong.

He should have -- if you say the injunction adds nothing to the vacatur, he should have ended by saying it's vacated.

Mr. Robbins: I think that was an available option.

I think the reason he didn't is that, among other things, the -- the parties were arguing about whether the -- the injunction should be broader than the vacatur.

And, of course, he had the authority, as the government has told us in its brief, to decline to vacate at all.

So it's not as if the remedy phase had no point.

It had a point.

It's was all up for grabs.

But in the end he issued a judgment with multiple parts, only a subset of which Petitioners elected to appeal.

That was their choice.

But now having made that choice, it seems to me surpassingly odd to draw this Court into a close reading -- and this goes back to one of the first questions of this morning, from Justice Alito -- the question about digging into this, what the district court appropriately called the voluminous record of -- of -- of declarations and evidence.

That's an -- just a -- I think a passingly -- a passing strange use of this Court's resources, to dig into those materials, when in point of fact--

Justice Antonin Scalia: We -- we don't necessarily have to do that.

We just have to decide whether the lower courts did it.

Mr. Robbins: --Well--

Justice Antonin Scalia: I mean, if we concluded that they didn't do it, that would -- that would be enough, wouldn't it?

We wouldn't have to do it ourselves.

Mr. Robbins: --Respectfully, Justice Scalia, I think the only way you can say they didn't do it is by doing it yourself; because they said they did it.

You look at pages--

Justice Antonin Scalia: They also said stuff which suggests that they didn't do it.

Mr. Robbins: --Well, I -- I won't -- and I am not here defending every particular line in some of the opinions, but there is no question that at 69a through 71a of the petition appendix, the district court articulated the standard four-part injunction test.

The court of appeals articulated it as well, said that the evidence was sufficient.

And, indeed, in this record, there is sufficient evidence to warrant a finding of a likelihood of irreparable harm, reviewable under an abuse of discretion standard.

Your--

Chief Justice John G. Roberts: If you're -- if you are right that the injunction does nothing, they don't have standing because of that, we should throw the injunction out.

Mr. Robbins: --Well, I -- I -- I think, given that standing is a threshold question, I don't see how the Court could do that.

I think the Court could say: We conclude that the vacatur prohibits exactly the same things as the Petitioners are demanding from this Court.

They didn't challenge it; they have a redressability problem, case dismissed--

Chief Justice John G. Roberts: We don't have to worry--

Mr. Robbins: --or dismissed as improvidently granted.

Chief Justice John G. Roberts: --The government doesn't have to worry about standing, does it?

Mr. Robbins: Well, the government -- well, the government I think has the same vacatur problem, but I don't think that's a burden I have to meet, because under -- I think it's Diamond v. Charles, the -- the standing has to be by the party that called upon this Court's jurisdiction.

Justice Anthony Kennedy: In deciding irreparable harm, what weight if any should be given to the proposition that there was an environmental impact regulation violation, as opposed to just a regular suit between, say, two farmers over a nuisance?

What weight do we give to the fact that -- let's assume -- there's a -- a violation of the rule requiring an environmental impact statement?

Mr. Robbins: Well, it -- it--

Justice Anthony Kennedy: That is not alone a sufficient harm to justify an injunction, is it?

Mr. Robbins: --No.

And no -- no one is claiming that an EIS violation standing alone gives rise to an injunction, but it carries some important weight.

And if I could just answer the question notwithstanding the red light, the answer to the question is the fact that they violated the EIS requirement tells us at a minimum that this was a significant -- a major Federal program that had a significant impact on the environment.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Robbins: Thank you.

Chief Justice John G. Roberts: Mr. Garre, you have 3 minutes.

REBUTTAL ARGUMENT OF GREGORY G. GARRE ON BEHALF OF THE PETITIONERS

Mr. Garre: Thank you, Mr. Chief Justice.

Justice Kennedy, to answer your question, this Court in Amoco held that you don't give special weight to that; that you apply the traditional equitable factors.

Your Honors, we absolutely did challenge the vacatur below.

That's spelled out in note 1 of our reply brief.

The whole fight in this case going forward since the district court has been over whether or not the court erred in not adopting the government's proposed measures.

On page 184 of the petition appendix, it makes clear that the government's proposed measures were intended to replace the deregulation order.

So the vacatur and the proposed measures are one and the same.

Justice Sonia Sotomayor: I have a real problem if the whole appeal is over whether or not the district court should have accepted the agency's views.

The agency has told us that it has side-stepped going through all of the regular -- all of the administrative steps it was required to.

It may not have needed to give notice, but it needed to do some form of an EA and get comments and do other things.

And it didn't do that.

Mr. Garre: Well, it--

Justice Sonia Sotomayor: So how can we say that the district court acted improperly, when it's the government who is asking the district court to forgive it from doing something it's legally required to do?

Mr. Garre: --The district court at least acted improperly in enjoining the agency from doing that on remand.

And if that's all the Court thinks it did improperly--

Justice Sonia Sotomayor: No, no.

My problem is I don't see that argument either in your brief or theirs.

Mr. Garre: --Well, it's part--

Justice Sonia Sotomayor: I see only the argument that it erred by not accepting something that the government had no power to do outside of the regulatory scheme.

Mr. Garre: --It's -- our view is it's part and parcel of the vacatur order.

The district court looked at this in the context of the injunction and posed those traditional factors in examining the scope of relief.

Justice Samuel Alito: How do you answer Mr. Robbins's--

Mr. Garre: I mean, it's important for this Court to set aside--

Justice Samuel Alito: --I'm sorry to interrupt.

How do you answer Mr. Robbins's imminence argument?

Mr. Garre: --In terms of going back for the imminence, we're operating under this injunction which is unlawful.

It's preventing -- it's causing real harm to the nation's farmers today.

There couldn't be more imminence in terms of the harm that we suffer because of this erroneous injunction.

With respect, it's -- it's the farmers that are challenging this--

Justice Ruth Bader Ginsburg: But wouldn't it be the same problem for the farmers if we had only the deregulation decision vacated?

They can't do anything until the agency then gives them permission to do something.

Mr. Garre: --If you go back, the agency could allow those measures to be implemented and that would solve--

Justice Ruth Bader Ginsburg: And that's going to take time.

Mr. Garre: --our problem.

Justice Ruth Bader Ginsburg: I mean, it's going to take time, and you have the EIS on track within a year.

So are you going to do this other operation in 6 months?

Mr. Garre: Not necessarily, Justice Ginsburg, but, with respect, we've been operating under this erroneous injunction for 3 years.

This Court should say it's erroneous.

There are other cases that are repeating this pattern.

It's important for the Court to correct this error.

And briefly on the question of harm: There are no instances in this record of any cross-pollination with hay, only a couple of -- a few isolated with respect to seed, and their harm really boils down to the question of their psychological objection to genetically engineered alfalfa.

That harm is not cognizable under Metropolitan Edison or anything else.

Thank you, Your Honor.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

Print this transcript Transcript: 

Chief Justice Mr. Chief Justice Robert Jr.: Justice Alito has the Opinion of the Court today in case 09-475, Monsanto Company Versus Geertson Seed Farm.

Justice Samuel Alito: This Case comes to us on writ of certiorari to the United States Court of Appeals for the Ninth Circuit.

The case involves a challenge to a decision by the United States Department of Agriculture to deregulate completely a particular variety of genetically engineered alfalfa.

The District Court held that the department violated the National Environmental Policy Act by issuing its deregulation decision without first completing a detailed assessment of the decisions likely environmental impact.

To remedy that violation the District Court vacated the agency's decision enjoined the agency from deregulating the alfalfa in whole or in part pending completion of the mandated environmental review and prohibited virtually all planting of the alfalfa on an interim basis.

The Court of Appeals affirmed the District Court's entry of permanent injunctive relief.

We hold that the District Court should not have enjoined the agency from affecting any deregulation of matter how limited pending its environmental review.

At this point, we do not know whether and to what extent, the agency will seek to effect a partial deregulation if it is free to do so.

We do know that subject to certain exceptions not relevant here, the genetically engineered alfalfa cannot be grown or sold commercially and thus poses no threat to the environment until such time as the agency issues a new deregulation decision, and we also know that if and when the agency makes such a decision any party aggrieved by that decision may file a new suit challenging that decision and seeking appropriate preliminary relief.

Because it was premature to foreclose even the possibility of a limited deregulation, it was likewise inappropriate to enjoin any and all parties from planting the alfalfa in accordance with such a deregulation decision.

For these and other reasons set out more fully in our opinion, we reverse and remand for further proceed.

Justice Stevens has filed a dissenting opinion.

Justice Breyer took no part in the consideration or decision of this case.