Ch. 8: Environmental Impact Assessment

NOTE 6, PAGES 916-917: Issuance of Injunctions to Remedy NEPA Violations & Standing to Sue

The seventh edition of the casebook discusses the Supreme Court’s decision in Monsanto v. Geertson Seed Farms, 133 S.Ct. 2743 (2010).  The case involved the propriety of an injunction issued in response to a violation of the National Environmental Policy Act (NEPA).  A federal district court had issued an injunction prohibiting nearly all planting of genetically engineered alfalfa until an environmental impact statement (EIS) was completed by the Animal and Plant Health Inspection Service (APHIS).  After the injunction was affirmed by the U.S. Court of Appeals for the Ninth Circuit, intervenor Monsanto Company, which produces the seed, sought review in the U.S. Supreme Court.  When the Court granted review it was widely expected that the decision would further flesh out the standards for issuing injunctions in NEPA cases as discussed in the Winter decision.  Instead the Court decided the case on much narrower grounds.  A last minute challenge to the standing of both petitioners and respondents also led the Court to discuss what must be alleged to establish standing to sue in such cases. For those interested in exploring the case in more detail, an edited copy of it is posted below.


Monsanto Co. v. Geertson Seed Farms

130 S.Ct. 2743 (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 Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq., by issuing its deregulation decision 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.


I

A


The Plant Protection Act (PPA), 7 U.S.C. § 7701 et seq., provides that the Secretary of the Department 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 engineered plants are presumed 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 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 environment.” 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 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 “environmental 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 undertake 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 herbicide 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 considering the hundreds of public comments that it received, APHIS issued a Finding of No Significant Impact and decided to deregulate RRA unconditionally and without preparing an EIS. Prior to this decision, APHIS had authorized almost 300 field trials of RRA conducted over a period of eight years.


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 Agriculture 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), 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.


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. Nevertheless, 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 consequences 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. In light of its determination that the deregulation decision ran afoul of NEPA, the District Court dismissed without prejudice respondents' claims under the ESA and PPA.


After these rulings, the District Court granted petitioners permission to intervene in the remedial phase of the lawsuit. The court then asked the parties to submit proposed judgments embodying their preferred means of remedying the NEPA violation. APHIS's proposed judgment 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. The terms of the proposed judgment, in turn, would have permitted the continued planting of RRA pending completion of the EIS, subject to six restrictions. Those restrictions 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 conventional or organic alfalfa; identification and handling requirements 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 proposed 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 completion 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 already purchased RRA to plant their seeds until March 30, 2007. 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 deregulation 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. The District Court denied petitioners' request for an evidentiary hearing.


The Government, Monsanto, and FGI appealed, challenging 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 affirmed. 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. The panel held that the District Court had not committed clear error in making any of the subsidiary factual findings on which its assessment 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 environmental harm in the past. Hence, the panel concluded that the District Court had not abused its discretion “in choosing to reject APHIS's proposed mitigation measures in favor of a broader injunction to prevent more irreparable harm from occurring.” . . .


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. Petitioners here satisfy 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 injunction order if they had pursued a different litigation strategy. 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 challenge, namely, the vacatur of APHIS's deregulation decision. The practical consequence of the vacatur, respondents contend, was to restore RRA to the status of a regulated article; and, subject to certain exceptions not applicable 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.


Respondents' argument fails for two independent reasons. 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. That judgment would have replaced the vacated deregulation decision with an order expressly allowing continued planting of RRA subject to certain limited conditions. Accordingly, if the District Court had adopted the agency's suggested remedy, there would still be authority for the continued planting of RRA, 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 partial deregulation. Respondents focus their standing argument on the part of the judgment enjoining the planting of RRA, but the judgment also states that “[b]efore granting Monsanto's deregulation petition, even in part, the federal defendants shall prepare an environmental impact statement.” (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”). As respondents concede, that part of the judgment goes beyond the vacatur of APHIS's deregulation decision.


At oral argument, respondents contended that the restriction on APHIS's ability to effect a partial deregulation of RRA does not cause petitioners “an actual or an imminent harm.” In order for a partial deregulation 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.” Because petitioners cannot prove that those two events would happen, respondents 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 remand the matter to the agency in order for APHIS to effect a partial deregulation. And even if a remand were 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 petitioners 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. For purposes of resolving the particular standing question before us, we need not decide whether or to what extent a party challenging an injunction 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 reflecting 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 constitutionally 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. We therefore hold that petitioners have standing to seek this Court's review.


B


We next consider petitioners' contention that respondents lack standing to seek injunctive relief. 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. 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.3 A substantial risk of gene flow injures respondents in several ways. For example, respondents 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. Respondents also allege that the risk of gene flow will cause them to take certain measures to minimize the likelihood of potential contamination and to ensure an adequate supply of non-genetically-engineered alfalfa.


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 respondents 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. Bennett v. Spear, 520 U.S. 154, 162-163 (1997). That argument is unpersuasive because, as the District Court found, respondents' injury has an environmental as well as an economic component. In its ruling on the merits of respondents' NEPA claim, the District Court held that the risk that the RRA gene conferring glyphosate 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 significant environmental concern for purposes of NEPA. The 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, pending completion of the mandated EIS; and third, it entered a nationwide injunction prohibiting almost all future planting of RRA. Because petitioners and the Government do not argue otherwise, we assume without deciding that the District Court acted lawfully in vacating the deregulation decision. 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 suffered 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 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).


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.” 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.


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 satisfied. In contrast, the statements quoted above appear to presume that an injunction is the proper remedy for a NEPA violation 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 not automatically issue” in NEPA cases. 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 injunction 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. We need not decide whether respondents' 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.


The relevant part of the District Court's judgment states that, “[b]efore granting Monsanto's deregulation petition, even in part, the federal defendants shall prepare an environmental impact statement.” (emphasis added). The plain text of the order prohibits 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 deregulation petition.” That injunction, which appears in the very same judgment and directly follows the injunction against granting Monsanto's petition “even in part,” does not carve out an exception for planting subsequently authorized by a valid partial deregulation decision.


In our view, none of the traditional four factors governing the entry of permanent injunctive relief supports the District Court's injunction prohibiting partial deregulation. 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 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. . . .


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. 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 respondents 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 nonexistent. 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 appreciable risk of gene flow to the crops of conventional farmers who might someday choose to plant in the surrounding area. Finally, suppose that APHIS concludes in a new EA that its limited 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 represent 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 partial deregulation improperly relieves respondents of their burden to make the requisite evidentiary showing.


Of course, APHIS might ultimately choose not to partially 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 deregulation envisioned in the above hypothetical. Until such time as the agency decides whether and how to exercise 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 deregulation, 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 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 preparation 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 conclusion 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 inappropriate for the District Court to foreclose even the possibility 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 the District Court's injunction against planting does not have any meaningful practical effect independent of its vacatur. 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 deregulation decision) was sufficient to redress respondents' injury, no recourse to the additional and extraordinary relief of an injunction was warranted.


E


In sum, the District Court abused its discretion in enjoining 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.



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. Second, even planting in a controlled setting had led to contamination in some instances. 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. Instead, the majority faults the District Court for “enjoining APHIS from partially deregulating RRA.”


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. .  . .


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. That is a permissible, but not necessarily correct, reading of the District Court's judgment. . . .


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 particula r 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 deregulation petition.” 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 infringement 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 jurisdiction and deciding a highly factbound case based on nothing more than a misunderstanding. It is also troubling that we may be making law without adequate briefing 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 interpreted 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 function is “to do equity and to mould each decree to the necessities 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 particular familiarity with the case. Id., at 329-330.


When a district court takes on the equitable role of adjusting legal obligations, we review the remedy it crafts 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 ‘inclination,’ “ 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. 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, 8 S.Ct. 273, 31 L.Ed. 205 (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, 28 S.Ct. 356, 52 L.Ed. 590 (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 for any future deregulation of RRA, and partially stayed the vacatur to the extent it affects farmers who had already planted RRA.


Under NEPA, an agency must prepare an EIS for “every ... major Federal actio [n] significantly affecting the quality 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 settings had led to contamination, APHIS is unable to monitor or enforce limitations on planting, and genetic contamination could decimate the American alfalfa market. In light of that evidence, the court may well have concluded that any deregulation of RRA, even in a “limited ... geographic area” with “stringent ... regulations governing harvesting and distribution,” FN6 ante, at 19-20, requires an EIS under NEPA. See generally D. Mandelker, NEPA Law and Litigation §§ 8:33-8:48 (2d ed.2009) (describing when an EIS is required); cf. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (NEPA embodies “sweeping commitment” to environmental 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 deregulation 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. 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) (EIS is more important when party “is conducting a new type of activity with completely unknown effects on the environment”).


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 confronted with NEPA violations regularly adopt interim measures to maintain the status quo, particularly if allowing agency action to go forward risks foreclosing alternative 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, 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 deregulation can limit future regulatory options. “Courts must remember that in many cases allowing an agency to proceed makes a mockery of the EIS process, converting it 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 requires an EIS for even partial deregulation of RRA, it suggests that any such conclusion would have been incompatible with the court's decision to permit limited harvesting by farmers who had already planted RRA. See ante, at 20. I do not see the “inconsisten[cy].” 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,” 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. Although it is “for the agency to decide whether and to what extent” it will pursue deregulation, the court's application of NEPA to APHIS's regulation of RRA might have controlled any deregulation during the pendency of the EIS. Petitioners and APHIS had already come back to the court 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 proposing such orders, instead of just moving ahead with an EIS. Indeed, it was APHIS itself that “sought to ‘streamline’ “ the process.


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 nature, can seldom be adequately remedied by money damages 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 Remedies, § 1937 (§ 523), p. 4398 (2d ed.1919). Once gene transfer occurred in American fields, it “would be difficult -- if not impossible -- to reverse the harm.” Hollingsworth v. Perry, 558 U.S. ----, ---- (2010) (per curiam).


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 circumstances, it was not unreasonable for the court to conclude that the most equitable solution was to allocate the limited 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.” The Court appears to reach this conclusion by citing one particular study (in a voluminous record), rather than any findings of fact. Even assuming that this study is 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.


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 (C.A.9 2009). But lacking “the benefit of the development 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 complete study, presented in an EIS, showed that the known problem of gene flow could, in reality, be prevented.


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, defined public policy.” 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.” Congress also recognized that agencies cannot fully weigh the consequences of these decisions without obtaining public comments through an EIS. While a court may not presume that a NEPA violation requires an injunction, it may take into account the principles embodied 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 experience with the case may have given it grounds for skepticism about the representations made by APHIS and petitioners. Sometimes “one judicial actor is better positioned than another to decide the issue in question.” A “district court may have insights not conveyed by the record.” In this case, the agency had attempted to deregulate RRA without an EIS in spite of ample evidence of potential environmental harms. And when the court made clear that the agency had violated NEPA, the agency responded by seeking to “streamline” the process, submitting 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 “unenviable position.” In front of it was strong evidence that RRA poses a serious threat to the environment and to 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 disconcerting 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 reverses. Accordingly, I respectfully dissent.


PROBLEM EXERCISE: CONSIDERING GHGs and CLIMATE CHANGE IN AN EIS, PAGES 951-952: CEQ’S AUGUST 2016 FINAL GUIDANCE RESCINDED BY PRESIDENT TRUMP

As noted in the text, in February 2010 the Council on Environmental Quality (CEQ) issued draft guidance concerning when and how federal agencies should consider GHG emissions and their effects on climate change when taking actions subject to NEPA.  That draft guidance was superceded by Revised Draft Guidance for Greenhouse Gas Emissions and Climate Change Impacts, which was released for public comment in December 2014.  The revised guidance is online at: https://www.whitehouse.gov/sites/default/files/docs/nepa_revised_draft_ghg_guidance_searchable.pdf.  Like the initial guidance described in the text, it used 25,000 metric tons of carbon dioxide equivalent emissions annually as “a reference point below which a quantitative analysis of greenhouse gas is not recommended unless it is easily accomplished based on available tools and data.”  One change from the initial draft guidance is that the revised draft applies to all proposed federal agency actions, including land and resource management activities. A brief article discussing the guidance is: Nicholas C. Yost, NEPA and Climate Change: Practitioners Should Take Note of CEQ’s New Guidance, 45 Envt’l L. Rep. 10646 (July 2015).

On August 1, 2016 the CEQ issued final guidance, which is available online at: https://www.whitehouse.gov/sites/whitehouse.gov/files/documents/nepa_final_ghg_guidance.pdf. It declares that the effects of climate change “fall squarely” within the effects that must be considered in conducting environmental impact assessments under NEPA. According to a fact sheet issued with it, the guidance:

  1. Advises agencies to quantify projected greenhouse gas emissions of proposed federal actions whenever the necessary tools, methodologies, and data inputs are available;

  2. Encourages agencies to draw on their experience and expertise to determine the appropriate level (broad, programmatic or project- or site-specific) and the extent of quantitative or qualitative analysis required to comply with NEPA;

  3. Counsels agencies to consider alternatives that would make the action and affected communities more resilient to the effects of a changing climate; and

  4. Reminds agencies to use existing information and science when assessing proposed actions.


The guidance advises agencies to consider not only the direct climate effects of major federal actions, but also their “indirect” climate effects, citing as an example the expected combustion of coal as a reasonably foreseeable indirect effect of a decision to sell coal from federal lands. When agencies do not quantify project’s direct greenhouse gas (GHG) emissions, the guidance recommends that they include a qualitative analysis and explain their basis for determining that quantification is not reasonably available.

On March 28, 2017, President Donald Trump issued Executive Order 13,783 on “Promoting Energy Independence and Economic Growth.”  A copy of the order is available online at: https://www.gpo.gov/fdsys/pkg/FR-2017-03-31/pdf/2017-06576.pdf.  The order directs that the Council on Environmental Quality’s Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews (81 Fed. Reg. 51866 (Aug. 5, 2016)) be rescinded. 


ONLINE RESOURCES PERTAINING TO ENVIRONMENTAL IMPACT ASSESSMENT


The website of the Council on Environmental Quality (CEQ), the White House agency responsible for coordinating federal agency compliance with the National Environmental Policy Act (NEPA), is located at http://www.whitehouse.gov/ceq/. CEQ operates NEPAnet (http://ceq.hss.doe.gov/nepa/nepanet.htm), which it describes as a central information hub for NEPA. The site includes links to CEQ's NEPA regulations (which are codified at 40 C.F.R. §§ 1500 to 1508) (http://ceq.hss.doe.gov/Nepa/regs/ceq/toc_ceq.htm), executive orders (http://ceq.hss.doe.gov/nepa/regs/executiveorders.htm) guidance documents prepared by CEQ, (http://ceq.hss.doe.gov/nepa/regs/guidance.html), NEPA websites maintained by thirteen federal agencies (http://ceq.hss.doe.gov/nepa/agencies.htm), lists of NEPA contact persons at federal agencies (http://ceq.hss.doe.gov/nepa/contacts.cfm), and downloadable copies of CEQ studies and annual reports. NEPAnet also lists EISs available for review and it provides access to a digital library of documents describing how various agencies comply with NEPA's EIS requirement (http://ceq.hss.doe.gov/nepa/documents.htm). NEPAnet includes a webpage with links to online environmental data sets to assist in environmental impact assessment (http://water.usgs.gov/eap/env_data.html).

EPA describes its NEPA responsibilities at http://www.epa.gov/compliance/nepa/index.html. It provides links to EPA’s Environmental Impact Statement Database, instructions for federal agencies on how to submit an EIS, information on how to obtain copies of EISs, and information on how EPA complies with NEPA for the actions it undertakes that are subject to NEPA’s requirements.

NEPA's EIS requirement is the most widely emulated feature of U.S. environmental law throughout the world. CEQ's NEPAnet maintains a webpage with links to environmental impact assessment agencies in 35 countries (http://ceq.hss.doe.gov/nepa/eia.html), and to the webpages of dozens of nongovernmental organizations and international entities involved in impact assessment. The International Association for Impact Assessment maintains a website (http://www.iaia.org) that provides information concerning how impact assessment is conducted around the world and what are considered to be best practices for it.