Appeals court ruling could have far-reaching effects
By MATEUSZ PERKOWSKI
The USDA claims it was precluded from considering potential harm to endangered species and other environmental effects in its decision to commercialize biotech alfalfa.
The agency recently defended its full deregulation of the transgenic crop before the 9th U.S. Circuit Court of Appeals, which has been asked by biotech critics to reverse the decision.
The USDA Animal and Plant Health Inspection Service only has the power to restrict cultivation of plants that are "parasitic," which genetically engineered alfalfa is not, said Dana Kaersvang, attorney for the agency.
"Once the evidence shows it is not a plant pest, APHIS doesn't have the discretion to regulate it as a plant pest," she said during oral arguments.
The Center for Food Safety, a nonprofit group, claims the agency has broader authority over genetically engineered crops. The USDA's interpretation of the law would let it ignore Endangered Species Act requirements to consult with other agencies about potential hazards to wildlife.
"It would allow agencies to limit themselves out of consultation duties by narrowly drawing their regulations or delaying updating their regulations," said George Kimbrell, an attorney for the group.
The National Environmental Policy Act, under which USDA conducts environmental reviews of biotech crops, would also be rendered a "meaningless paper exercise," he said.
Since the USDA must evaluate the environmental consequences of biotech crops, it stands to reason that the agency can prevent potential harms, said Kimbrell.
"If they didn't have authority over them, they wouldn't have to analyze them," he said.
The Center for Food Safety argues that transgenic alfalfa, which is resistant to glyphosate herbicides, will cause farmers to spray more of the chemical to the detriment of threatened and endangered species.
Biotech critics fear that more glyphosate usage will speed weed resistance to the herbicide. They also worry cross-pollination between transgenic alfalfa and other varieties will damage markets for conventional and organic farmers.
However, the 9th Circuit's decision in this case will have far-reaching effects beyond transgenic alfalfa, Andrew Kimbrell, executive director of the Center for Food Safety, told Capital Press.
If the 9th Circuit agrees with the USDA's position, the agency's oversight of genetically engineered crops would become a "sham," he said. "It would neuter their regulatory authority."
During the oral arguments, USDA pointed out that other, non-genetically engineered crops also have the propensity for cross-pollination problems, but that doesn't give the agency jurisdiction over them.
Concerns about increased herbicide usage, meanwhile, fall under the purview of the U.S. Environmental Protection Agency, which had to approve the spray regime for alfalfa, said Kaersvang.
"The herbicide is regulated by EPA," she said. "EPA authorized the label change and nobody challenged the label change."
It's not in the USDA's job description to look for obstacles to stop the cultivation of transgenic crops that aren't plant pests, said Richard Bress, an attorney for the Monsanto Co., which developed the Roundup Ready crop.
"Statutory language can only be stretched so far," he said.
Genetically engineered alfalfa was originally deregulated in 2005 but a federal judge blocked further planting of the crop two years later.
The U.S. Supreme Court lifted that injunction in 2010 but the crop remained regulated until the USDA completed a comprehensive environmental review and decided to allow farmers to grow it without restriction last year.