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Standing in Monsanto Co. v. Geertson Seed Farms: Using Economic Injury as a Basis for Standing When Environmental Harm is Difficult to Prove

34 Pages Posted: 5 Sep 2010 Last revised: 16 Jul 2014

Bradford C. Mank

University of Cincinnati - College of Law

Date Written: September 1, 2010


Many of the Supreme Court’s important standing cases have involved environmental disputes. Most recently, in 2010, the Court again addressed standing in an environmental dispute, Monsanto Co. v. Geertson Seed Farms. In Monsanto, the Court did not announce a new standing doctrine. Nevertheless, the Court recognized that an environmental plaintiff may sue without proof of actual environmental harm if it can demonstrate that he or she may suffer economic losses from testing and mitigation measures related to a threatened harm. During the oral argument in Monsanto, Justice Scalia expressed skepticism that the plaintiffs could prove that the petitioners’ sale of genetically modified alfalfa seed would cross-contaminate the plaintiffs’ farms, which used conventional alfalfa seed. Yet he ultimately joined the majority opinion with, among others, Justice Ginsburg, with whom he had disagreed in previous environmental standing decisions.

Plaintiffs can raise both claims of environmental harm and property losses as separate grounds to establish a personal injury sufficient for standing. In some cases, as will be discussed below regarding Monsanto, a plaintiff’s claim that a defendant’s actions have caused him or her economic harm may be easier to prove than establishing an environmental injury. For example, although he has often demanded greater proof of environmental harm to establish standing than other members of the Court, Justice Scalia in his dissenting opinion in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. (Laidlaw) was willing to consider the possibility that an environmental plaintiff could establish standing without proof of environmental injury if he or she could show property loss from a threatened environmental injury. By contrast, his dissenting opinion in Laidlaw had rejected the plaintiffs’ “reasonable concerns” about a threatened environmental injury as insufficient for standing. Based on his dissenting opinion in Laidlaw, the most plausible explanation for Justice Scalia’s joining the majority opinion in Monsanto is that he concluded that the plaintiffs-respondents’ claims of indirect economic harms were plausible even if he remained skeptical regarding their claims of potential environmental harms from the possibility of cross-contamination of seeds. In future cases, the Monsanto decision may be cited as precedent for standing by environmental plaintiffs who can make a plausible showing of economic injury even in cases where it may be difficult to prove an actual environmental harm to the plaintiffs.

Keywords: Environmental Dispute, Environmental Injury, Cross-Contaminate, Monstanto, Laidlaw, Economic Injury, Economic Loss

JEL Classification: K10, K32

Suggested Citation

Mank, Bradford C., Standing in Monsanto Co. v. Geertson Seed Farms: Using Economic Injury as a Basis for Standing When Environmental Harm is Difficult to Prove (September 1, 2010). 115 Penn State Law Review 307; University of Cincinnati Public Law Research Paper No. 10-26. Available at SSRN:

Bradford Mank (Contact Author)

University of Cincinnati - College of Law ( email )

P.O. Box 210040
Cincinnati, OH 45221-0040
United States
513-556-0094 (Phone)
513-556-1236 (Fax)

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