In Winter v. Natural Resources Defense Council, 129 S. Ct. 365 (2008), the Supreme Court affirmed that plaintiffs seeking injunctive relief must demonstrate, among other things, that they are likely to suffer irreparable harm in the absence of the requested injunction. On January 15, 2010, the Court granted certiorari in Monsanto Co. v. Geertson Seed Farms, No. 09-475, to address three questions concerning the evidence of irreparable harm necessary before an injunction may issue under the National Environmental Policy Act (NEPA): (1) Whether plaintiffs asserting a claim under NEPA are exempt from the general rule that a likelihood of irreparable harm must be shown to obtain an injunction; (2) whether a district court may enter an injunction to remedy a NEPA violation without conducting an evidentiary hearing to resolve disputed facts relevant to the appropriate scope of the requested injunction; and (3) whether the lower court erred in this case when it affirmed an injunction based on an arguably remote possibility of harm.

This case is important to any business or industry that could face lawsuits from environmental plaintiffs, and is particularly significant to the agricultural biotechnology industry and the countless farmers who are growing genetically engineered crops. The lower court’s approach suggests that plaintiffs in environmental cases can obtain comprehensive injunctive relief even when there is an unresolved factual dispute over whether they will actually be injured absent an injunction.

Genetically-engineered crops are subject to a complex regulatory review and authorization process before they are approved for commercial use. In this case, the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) prepared an Environmental Assessment of a genetically engineered alfalfa seed created by Monsanto, and concluded that the alfalfa would have no significant impact on the environment. The genetically engineered alfalfa was accordingly made available for commercial planting, and quickly came into widespread use among alfalfa farmers.

Plaintiffs successfully challenged APHIS’s environmental review in federal district court, and sought a permanent injunction against the use of the genetically engineered alfalfa while the agency prepared a more extensive Environmental Impact Statement under NEPA. Monsanto and APHIS argued that a far less restrictive injunction would be sufficient to prevent any conceivable injury to plaintiffs, and asked the district court to hold an evidentiary hearing on that issue. The district court refused to hold a hearing, and granted plaintiffs’ request for broad injunctive relief. The Court of Appeals, with one judge dissenting, affirmed the district court’s injunction.

Absent extensions, amicus briefs in support of the petitioners will be due March 4, 2010, and amicus briefs in support of the respondents will be due on April 1, 2010. Mayer Brown filed an amicus brief on behalf of various organizations in support of the petition for a writ of certiorari.

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