Posted: Thursday, May 06, 2010 9:00 AM
The U.S. Supreme Court heard arguments last week in a case the could set limits on what lower courts can order when they find the USDA has improperly deregulated a biotech crop.
A U.S. District Court judge in California ruled that USDA should have completed an environmental impact statement before it deregulated Monsanto's Roundup Ready alfalfa seed. The court issued an injunction that allowed those who had already purchased the seed to plant their crop, allowed existing crops to be harvested, barred the further sale of seed, and blocked USDA from authorizing any other uses of the crop until an impact statement was completed.
The issue before the court centers around the legality of that injunction. Once having ruled the USDA had erred in its deregulation of the crop, should the judge have simply turned the issue back over to the agency to handle administratively? Or was it proper for the judge to issue the injunction, which barred USDA from exercising its statutory authority to allow conditional uses of the crop as it worked to complete the impact statement?
We will resist the urge to predict how the court will rule. We will use the transcript of the arguments as an entry point to comment on some of the relevant issues.
* The original lawsuit, and a similar suit brought to overturn the deregulation of Roundup Ready sugar beets, hinged on the fact that the Animal and Plant Health Inspection Service didn't complete an environmental impact statement, depending instead on the results of a less rigid environmental assessment. Does environmental law require an EIS?
No. Gregory Garre, representing Monsanto, argued that federal law allows the agency to proceed with deregulation without an EIS if it finds there is no adverse environmental impact. Having found no impact, the government wasn't required to complete the EIS. Two federal judges in separate cases found the impact did exist.
We are not sure statute allows a predetermination, but it would make sense for APHIS to perform the more rigorous review as a matter of course. There are 19 transgenic crops up for deregulation. Or, in another light, 19 potential lawsuits waiting to be filed. While the lawsuits will be filed even if an EIS is performed, its absence provides unnecessary fuel for the fire.
* In defining the potential harms of a deregulated genetically modified crop, Lawrence Robbins, representing the plaintiffs, noted that his clients had chosen either organic or conventional farming that is free of genetically modified crops, or raise and sell "natural" beef. Cross-contamination puts those businesses at risk.
Should farmers be able to make that choice? Certainly. There's a growing market for these crops and products, and it makes good business sense to exploit those markets. Should these growers and producers be protected from cross-contamination? We think all farmers should take reasonable precautions to ensure that their operations don't damage the enterprises of their neighbors. We support reasonable regulations to enforce these safeguards and impose neighborly behavior where it does not naturally exist.
But no farmer can be shielded from all risk, and we think the best and proper remedy is for affected farmers to seek actual damages when they suffer actual harm.
At any rate, Justice Ruth Bader Ginsburg noted the USDA has completed a rough draft of the environmental impact statement and will likely deregulate Roundup Ready alfalfa. Plaintiffs, she said, "will have to accept that there are other planters who want to do the genetically modified crop."
* How inevitable is the spread of genetically modified crops? Justice Sonia Sotomayor asked why genetically modified crops are so popular. Did it come from contamination, or consumer choice? "That's what farmers like because it's easy to grow?"
Farmers grow genetically modified crops because they offer an economic advantage. They have always adopted techniques and technologies that give them an edge. Hybrids offered advantages over standard varieties. Tractors offered advantages over draft horses. That standard varieties are still grown and some farmers prefer horses over tractors shows that free will is alive and well in rural America.
That's not to say that choosing something other than what your neighbors choose is always easy. Prevailing practices can influence certain choices, but rarely preclude any alternatives.