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Courts' power over biotech in balance

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Legal challenge will set precedent guiding judges' actions in future GM cases



Analysis



By MATEUSZ PERKOWSKI



Capital Press



Arguments heard this week by the U.S. Supreme Court focused on genetically engineered alfalfa, but the case embodies broader legal questions about the power of federal courts to restrict transgenic crops.



During oral arguments April 27 on the appeal of an injunction by a federal judge that blocked commercial sale of Roundup Ready alfalfa, some Supreme Court justices appeared to question the extent of harm posed by the crop's commercialization.



"This isn't contamination of the New York City water supply," Justice Antonin Scalia said. "It doesn't even destroy the current plantings of non-genetically engineered alfalfa. This is not the end of the world. It really isn't."



Lawrence Robbins, an attorney representing opponents of Roundup Ready alfalfa, said the risk posed by the crop depends on whether it's grown for hay or seed. That led Justice Sonia Sotomayor to question the nationwide restriction on planting.



"You just said the words 'different levels in different degrees,' but this is an all-size fit injunction," she said. "So how is that reasonable when the risk is different depending on the place and type of growth?"



Attorneys for Monsanto and the federal government argued that the judge should have adopted recommendations from USDA. The agency wanted to prevent the spread of Roundup Ready genes by imposing isolation distances, barring the release of pollinators in transgenic alfalfa fields and requiring the crop to be harvested before bloom.



Sotomayor questioned whether that was a valid legal argument, particularly since USDA admitted to violating administrative laws by not completing an environmental impact statement on the crop.



"I have a real problem if the whole appeal is over whether or not the district court should have accepted the agency's views," she said. "The agency has told us that it has sidestepped going through all of the regular -- all of the administrative steps it was required to."



Monsanto's legal strategy was also questioned by justices during the hearing.



Several justices asked about the company's reasons for challenging the restriction against planting, which is technically separate from the reversal of the crop's deregulation.



The implication is that even if the injunction against planting is struck down, Roundup Ready alfalfa still wouldn't be fully commercialized until the environmental impact statement is complete.



"I'm looking at the injunction and it says that the deregulation is vacated and Roundup Ready is once again a regulated article," Justice Ruth Bader Ginsburg said. "We could simply say as far as it goes, that's all right, anything else is surplusage. We take it to be the judgment that Roundup Ready alfalfa is once again a regulated article, period."



The matter is further complicated by USDA's ongoing deregulation process for Roundup Ready alfalfa. The agency has been working on an environmental impact statement since the 2007 decision. A draft version of the statement, released in November 2009, recommended once again deregulating the crop.



However, an attorney for the government, Malcom Stewart, told justices "there is no realistic prospect that the case will become moot before this court's decision is rendered."



An attorney for Monsanto, Gregory Garre, urged the justices to reject the injunction regardless of the ongoing deregulation process.



"This court should say it's erroneous," he said. "There are other cases that are repeating this pattern. It's important for the court to correct this error."



The Supreme Court decision's regarding alfalfa would probably have the most immediate effect on Roundup Ready sugar beets, which are the subject of another federal court challenge.



In September 2009, a federal judge ordered USDA to conduct an environmental impact statement on the crop, which is also glyphosate-tolerant. The judge did not prohibit the planting of transgenic sugar beets this spring, but left that possibility open for the future.



The USDA's Animal and Plant Health Inspection Service has 19 pending petitions that seek deregulated status for transgenic crops.



If the commercialization of these plants is ever challenged in court, the legal history of Roundup Ready alfalfa will clarify how much control federal courts can have over the crops' cultivation.



The controversy stems from the USDA's decision in 2004 to deregulate an alfalfa variety developed by Monsanto that can tolerate glyphosate -- an ingredient in the company's Roundup herbicide.



Farmers can spray the herbicide over fields of Roundup Ready alfalfa without harming the crop, allowing them to control weeds more easily.



Commercialization of the crop was halted in 2007 when a federal judge decided the agency should have completed a comprehensive review, or environmental impact statement, prior to deregulating transgenic alfalfa.



Some conventional farmers and environmental groups challenged the deregulation because they fear Roundup Ready alfalfa would cross-pollinate with other alfalfa varieties, unleashing the glyphosate-resistant gene into the environment and diminishing overseas demand for U.S. alfalfa hay.



The federal judge issued an injunction that blocked Roundup Ready alfalfa seed from being planted and sold after March 30, 2007, but allowed farmers who had already bought or planted seed to grow and sell the crop.



That ruling was twice upheld by the 9th U.S. Circuit Court of Appeals, but the Supreme Court agreed to review the appellate decision earlier this year.



Monsanto has urged the nation's highest court to overturn the injunction, claiming that a nationwide ban on the crop is excessive. Lesser restrictions could have prevented any irreparable environmental or economic harm, the company said.









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