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No end in sight for biotech battle

Published on April 1, 2011 3:01AM

Last changed on April 29, 2011 8:38AM

Rik Dalvit/For the Capital Press

Rik Dalvit/For the Capital Press

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If Herman Melville were to write Moby Dick today, the protagonist Ahab could easily be portrayed as an environmental lawyer relentlessly chasing genetically modified alfalfa.

But in this modern-day version, Ahab has not yet lost his leg or suffered any damage from his nemesis. And instead of using a harpoon, he hurls endless lawsuits against the object of his obsession.

This idea is more fact than literary fancy. Melville's classic is being rewritten, albeit in far less captivating prose, in the form of court documents filed in federal court in Northern California.

For the second time, the U.S. Department of Agriculture earlier this year deregulated Roundup Ready alfalfa, making the crop again legal to plant.

Environmentalists first filed suit against the crop in 2006. They successfully argued that USDA's Animal and Plant Health Inspection Service should have produced an environmental impact statement before clearing the genetically modified forage for unregulated production. A federal judge issued an injunction the following year barring further plantings and ordered USDA to complete the more extensive study.

That case plodded through the courts. The U.S. Supreme Court eventually ruled the trial judge erred in issuing the injunction, but upheld the need for the environmental impact statement. In the meantime, over four years to be exact, USDA completed a more than 1,000-page study, and earlier this year again approved the crop for unregulated production.

Biotech critics now claim the EIS falls short of thoroughly analyzing the potential environmental hazards of genetically engineered alfalfa. Their complaint alleges that USDA has failed to account for the risks of genetic contamination, increased herbicide use and the emergence of glyphosate-resistant weeds.

The plaintiffs have asked a federal judge in California to declare that the USDA violated environmental and administrative laws by relying on a defective EIS to deregulate transgenic alfalfa.

If the judge agrees with the plaintiffs, he may vacate the USDA's decision. Under the terms put in place by the Supreme Court, such a finding would effectively ban the planting and sale of the crop.

The USDA would then have the opportunity to partially deregulate the crop, allowing cultivation on a more limited basis. If biotech opponents disagree with those measures, they could file yet another lawsuit challenging them.

We have long said that USDA must use the best science available in making its decisions about biotech crops. We agree that every cause should have its day in court, but in our simple sense of justice the purpose of such litigation should be to reach a terminal, declarative decision.

Plaintiffs do not want the USDA to use the best science available on the impacts of biotech crops, unless of course the USDA's results further their end. They seek no court ruling that cannot be yet undone in future litigation.

So the cases multiply, and the plaintiffs lament, "... to the last I grapple with thee."

Perhaps a more fitting literary metaphor can be found in Charles Dickens' "Bleak House," where the inheritance case central to the plot, Jarndyce and Jarndyce, has already been litigated for "generations" when the story begins.

"Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises."


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