July 02, 2010

Multimedia: Professor Johnston featured at HuffingtonPost.com critiquing SCOTUS ruling

Multimedia: Professor Johnston featured at HuffingtonPost.com critiquing SCOTUS ruling

Environmental law professor Craig Johnston is featured at HuffingtonPost.com, responding to the recent Supreme Court ruling in Monsanto vs Geerston Seed Farms, a case involving the potential contamination and environmental hazards of cross pollination of genetically engineered plants. Johnston was the lead author of a brief submitted to the Supreme Court on behalf of Natural Resource Defense Council.

Here, Johnston shares his views on the Supreme Court ruling process and how he thinks the outcomes of this case might affect future judicial questions about genetically modified food.

What do you think are the top three takeaways from the Supreme Court’s ruling in Monsanto vs Geerston Seed Farms?

First, the Court concluded that the government should have the opportunity to at least consider whether there are certain deregulatory steps it can take without first completing a full environmental impact statement (EIS). Second, the Court indicated that if the government does conclude it can forward without an EIS, the plaintiffs, or any other affected parties, will be able to challenge the legality of that decision. And third, the Court determined that the plaintiffs’ economic interests in selling conventional  (non-genetically-modified) alfalfa are sufficient to support their right to sue, both as a matter of constitutional standing and as a matter of the “zone of interest” analysis required under principles of administrative law.

How do you think this case might affect the future of genetically engineered food?

I don’t think it actually affects things very much. All it does is tell the government that it can start over in its efforts to deregulate genetically-modified alfalfa. If the government still believes that deregulating the alfalfa is a wise thing to do, nothing in the National Environmental Policy Act imposes any substantive constraints on its moving in that direction.

What aspect of this case inspired you to get involved with the Natural Resources Defense Council?

My primary motivation in getting involved in this case was an issue that Monsanto raised, but which, happily, the Supreme Court did not address. Monsanto argued in this case that, under traditional principles of equity, courts cannot issue injunctions unless the harm that the plaintiffs are concerned about is more likely than not to actually come to pass. If the Court had accepted this argument, lower courts would have been precluded from issuing injunctions, no matter how serious the potential consequences, in situations where there is a real, but less than 51 percent, likelihood of harm. Imagine a situation, for example, where there is a 40 percent likelihood of another blowout on the scale of the Deepwater Horizon catastrophe. Courts would be powerless to respond. The thrust of my brief was to show that this view is inconsistent with both the common law and common sense.

Did any one justice surprise you with their questioning or opinion?

What surprised me the most about Justice Alito’s majority opinion was how friendly it was to the environmental side on both the standing and zone of interest aspects of the case.  Given that friendliness, I am particularly surprised that Justice Scalia simply concurred in the majority opinion and didn’t write separately at all.


Learn more about these issues in the following video, produced by Cooking Up a Story, an online television series and blog about people, food, and sustainable living.