Summary of a Recent
Judicial
Development in
Administrative Law
APHIS Fails to Consider Weed
Classification and Environmental Impact
Eric PendergrassNational AgLaw Center Graduate Assistant
In International Center for Technology Assessment v. Johanns, 473 F. Supp. 2d 9 (D.D.C. 2007), the United States District Court for the District of Columbia held that the Animal and Plant Health Inspection Service (APHIS) acted in an arbitrary and capricious manner when it denied the plaintiffs' petition to list glyphosate-resistant creeping bentgrass (GTCB) and glyphosate-tolerant Kentucky Blue Grass as noxious weeds and when it decided than no environmental impact statement was necessary to permit the test plots for these two grass varieties.
The plaintiffs, who included three organizations and five individuals, sought to have glyshosate-resistant grass varieties listed as noxious weeds under the Plant Protection Act (PPA) because of the possibility that they would invade areas containing non-genetically modified grasses and require the application of more toxic herbicides. Id. at 14. APHIS's decision to deny the petition was partially based upon international standards preventing the classification of weeds as noxious if they were new or not widely prevalent. Id at 24. The court disagreed with this determination and required APHIS to reconsider the petition because the PPA allowed for any plant that poses a threat to crops, livestock, or other agricultural or environmental interest to be considered a noxious weed and receive the control associated with that classification. Id.
Instead of listing the plants as noxious weeds, APHIS issued a permit for several test plots of these varieties of grasses without conducting environmental assessments. Id. at 13. The court disagreed with APHIS's determination that no environmental impact statement was necessary when permitting the tests plots for the grasses because the agency failed to consider the effects of these plots on the quality of the human environment. Id. at 29. The plots in question were not confined field releases of a genetically-engineered crop or organism that would have excluded them the requirement of an environmental impact statement because the permits were for an open-air release. Id. Under the National Environmental Protection Act (NEPA), federal agencies must "examine the environmental effects of proposed federal actions and . . . inform the public of the environmental concerns that were considered in the agency's decision making." Id. at 28 (citing Citizens Against Rails-to-Trails v. Surface Transp. Bd., 267 F.3d 1144, 1150 (D.C.Cir.2001)). As a result, the court enjoined APHIS from issuing permits for open-air release of genetically modified plants without first making a determination of whether an environmental impact study is required in the absence of an exemption for a confined release. Id. at 31.
The case was decided on February 5, 2007; this summary was posted September 27, 2007.