Last week the 9th U.S. Circuit Court of Appeals refused to overturn the Department of Agriculture's decision to commercialize genetically engineered alfalfa.
It is the latest, but probably not the last, judicial finding concerning the crop. The appeals court upheld USDA's contention that the Plant Protection Act requires the deregulation of biotech crops found not to be plant pest risks.
A related case was decided by the Supreme Court, and this one could easily be headed there.
Roundup Ready alfalfa was developed by Monsanto to withstand glyphosate herbicides. Its initial deregulation by USDA's Animal and Plant Health Inspection Service, or APHIS, in 2006 was challenged because the service had failed to complete an environmental impact statement.
The federal district court blocked the sale and planting of the crop, and ordered APHIS to conduct the more detailed review. That took three years.
In the meantime, an appeal of that ruling was heard by the Supreme Court. While the justices upheld the trial court's order that APHIS conduct the environmental impact statement, it firmly established the USDA's authority to implement interim measures regarding the production of the crop while the review was underway.
Agriculture Secretary Tom Vilsack unsuccessfully sought to work out restrictions on the planting of the crop as a compromise between advocates and critics, and in the end fully deregulated the crop in 2011.
The Center for Food Safety and other biotech critics filed suit challenging the environmental impact statement. Their challenge was denied by a district court, and now by a three-judge appeals panel. Plaintiffs have asked for a review by the full appeals court.
Plaintiffs worry the crop will cross-pollinate with organic and conventional alfalfa, harming the markets of the farmers who raise those crops. They're also concerned about the development of glyphosate-resistant weeds, potential effects on endangered species from increased herbicide usage, as well as other environmental issues.
As legitimate as these concerns may be, the court correctly ruled that they don't fall under the purview of the Plant Protection Act. The court concluded changing the law is up to Congress, not to federal courts.
That makes sense. We encourage plaintiffs to pursue that option.
The deregulation of genetically modified crops is a target-rich environment for plaintiffs. Many of these cases never find resolution, as each decision begets another appeal, or a new lawsuit based on a new argument.
The law governing regulation of these crops should address legitimate environmental and economic concerns. The bar should be high, but clear. We would prefer a tough but concise standard over endless litigation.