Monday, April 26, 2010
Hear Ye, Hear Ye. Judging Biotechnology
Biotechnology has been bouncing around in the courts for the past six years, and it will reach the US Supreme Court on Tuesday. The Justices will hear arguments about the biotech alfalfa case, in which the USDA approved the release of genetically modified alfalfa without fully following its own requirements. The Roundup Ready alfalfa case will be called on the docket, and sometime this summer the Justices will decide something, but it is unsure just what.Back in 2004 the USDA’s Animal and Plant Health Inspection Service received comments on whether Monsanto’s genetically modified alfalfa should be regulated or not, and despite 80% of the 663 comments opposing the release of the biotech seeds, USDA declared it would not be a threat to organic alfalfa. With the decision to deregulate the product, Iowa State University agricultural law specialist Roger McEowen said that is when the legal battle began. In his analysis of the case to be called April 27th, McEowen says there have been other biotech legal issues within the US courts. One dealt with whether USDA acted properly under the rules of the National Environmental Policy Act (NEPA) about declaring genetically modified bentgrass to be a noxious weed that should be controlled. Another dealt with small amounts of genetically rice that was produced by Dow and commingled in the US rice supply. That became a marketing issue and rice futures dropped to the point of costing the US rice industry some $1.2 billion.
McEowen says the alfalfa case alleges “the biotech alfalfa could create super weeds resistant to herbicide, hurt production of organic dairy and beef products, and could cause farmers to lose export business due to risks of contamination to natural and organic alfalfa. The suit also alleged that contamination of conventionally grown alfalfa could force farmers to pay for Monsanto’s patented gene technology whether they wanted it or not. The plaintiffs sought an injunction against future seed sales or plantings of biotech alfalfa.” The trial court ruled that GMO alfalfa could not be planted, but allowed the 220,000 acres of production that year to be harvested, but segregated. It allowed farmers with the seed to plant it if they had it, but it had to be planted prior to a deadline, and no sales of the product would be allowed after that date. Currently, 76 farmers are still harvesting it, but are required to harvest it for the seed that is segregated, and to clean their equipment to minimize the risk to organic alfalfa producers.
Interestingly, Monsanto had argued there was low risk of contamination with organic alfalfa, and that fewer toxic chemicals would be used on the biotech alfalfa, but the court rejected those arguments, saying no toxic chemicals were going to be used on the organic alfalfa either. When the case was appealed to the Federal Appellate Court, it upheld the biotech ban until the USDA prepares an environmental impact statement (EIS). The Appellate judges not only agreed the NEPA requirements were violated, but that organic and conventional alfalfa producers had suffered irreparable harm because they could not replant alfalfa seed for two to four years after the biotech crop is removed. Monsanto’s financial claims were rejected, with the Appellate court saying the biotech alfalfa was only a small share of the Monsanto business and the greater harm would be to farmers who did not want biotech alfalfa seed contaminating their fields.
When the Supreme Court agreed earlier this year to hear the biotech alfalfa case, it indicated the case would be decided on whether the USDA violated the National Environmental Policy Act and whether the Appellate Court erred in declaring a national ban on the biotech alfalfa. McEowen says it is unlikely the Supreme Court decision will address the core issue of governmental regulation of genetically modified crops, but that the Justices could address the National Environmentally Policy Act which allows the governmental to be sued by environmental activist groups.
Summary:
The six year court battle over biotech alfalfa may be coming to a close, but the Supreme Court’s decision may impact the way environmental regulations are handled by the USDA. The hearing on Tuesday will result in a decision over the summer, and while it is doubtful the decision will deal with the use of biotech alfalfa seed, the outcome will likely be about the way the USDA implements regulations of biotech seed.
Posted by Stu Ellis on 04/26 at 01:53 AM | Permalink