A three-judge panel of the Ninth Circuit Court of Appeals in San Francisco overturned a preliminary injunction that mandated destruction of Roundup Ready (RR) sugar beets planted under USDA permits. The court concluded that the challengers had failed to demonstrate irreparable harm from allowing stecklings (seedlings) that the court described as “juvenile sugar beets” to be grown.

“Plaintiffs give us little reason not to defer to APHIS’s technical expertise and judgments on this score,” Judge Sidney Thomas wrote in the court’s opinion. Although this decision is a small part of a larger litigation, it is a major setback for the coalition of biotechnology critics and organic activists that have found a legal strategy to delay the regulatory approval of transgenic crops in US agriculture. These legal tactics by groups such as Earthjustice and the Center for Food Safety have 1) impeded farmers who want to plant biotech alfalfa and sugar beets and 2) run up large legal costs for USDA, the Justice Dept. and the cooperatives that helped Monsanto develop the alfalfa and have been processing and marketing the beets.

The court concluded that the challengers failed to show that the stecklings “present a possibility, much less a likelihood, of genetic contamination or other irreparable harm” but instead the “undisputed evidence indicates that the stecklings pose a negligible risk.” The permits prohibit flowering or pollination. The Animal & Plant Health Inspection Service (APHIS) has permitted more than 100 confined field releases of Roundup Ready sugar beets with no known “loss of confinement.” The Supreme Court’s decision last year in a related Monsanto case warned against granting injunctions where APHIS’s action is “sufficiently limited” and where “the risk of gene flow to [plaintiffs’] crops could be virtually nonexistent.” This court ruling appears to heed the high court warning.

The ruling does not change the 2008 suit that persuaded the lower court to require APHIS to do an environmental impact statement rather than a less exhaustive environmental assessment before clearing the beets for commercial use. USDA announced on Feb. 4 that it would allow planting to resume under controlled conditions.

“The decision will be immediately challenged in court by a coalition of farmers and conservation groups: the Center for Food Safety, Organic Seed Alliance, High Mowing Organic Seeds and the Sierra Club,” the anti-biotech coalition said.