Biotech alfalfa back in court
Critics seek flaws in USDA's 1,000-page impact statement
By MATEUSZ PERKOWSKI
Roundup Ready alfalfa is again legal, but opponents say farmers shouldn't rely on the crop to remain unregulated and warn they risk losing money if a new legal challenge succeeds.
Several environmental groups and conventional seed producers are heading to federal court, seeking to block production of alfalfa that's been genetically engineered to withstand glyphosate herbicides.
A legal complaint was filed March 18 against the USDA by the same plaintiffs that successfully halted new plantings of the crop in 2007. This time around, though, the agency is armed with a hefty environmental review that backs up its decision to allow farmers to grow biotech alfalfa without restrictions.
The USDA's Animal and Plant Health Inspection Service was ordered to complete that study, known as an environmental impact statement, by a federal judge in the previous lawsuit.
Biotech critics now claim the agency's 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.
It will be tough for plaintiffs to discredit the thoroughness of the document, which runs more than 1,000 pages and took nearly four years to complete, said Mark McCaslin, president of Forage Genetics International.
The company is commercializing the crop, known as Roundup Ready alfalfa, under license with biotech trait developer Monsanto.
"We don't see any significant reason that it would be reversed," McCaslin said.
Roundup Ready alfalfa is currently legal to plant, but opponents of the crop urge farmers not to place too much confidence in the longevity of the deregulation decision, announced earlier this year.
"This crop has been under a legal cloud. If you purchase and plant this crop, you're doing this at your own risk," said George Kimbrell, an attorney for the Center for Food Safety, a plaintiff in the lawsuit.
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, which would effectively ban planting and sale of the crop, Kimbrell said. "The default status of genetically engineered crops is as a regulated article."
In the California federal court district where the case was filed, it takes an average of about 10 months for civil cases to be resolved, according to federal data.
Kimbrell said the plaintiffs will also seek a preliminary injunction against the crop's cultivation before the case is ultimately decided.
Such a preliminary order halted the planting of Roundup Ready alfalfa several years ago, but there has since been a major legal development affecting biotech crops.
The U.S. Supreme Court reviewed the previous biotech alfalfa case in 2010 and ruled that the federal judge went too far in blocking further plantings of the crop.
After vacating the USDA's decision to permit unrestricted cultivation of the crop, the judge should have allowed the agency to implement a partial deregulation of the crop before the EIS was finished.
In the new lawsuit, that precedent theoretically allows the judge to re-regulate the crop without entering an injunction.
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.
It's unclear how such legal maneuvers would affect farmers who have already planted Roundup Ready alfalfa, said Beth Nelson, president of the National Alfalfa and Forage Alliance. "At this point, that's anybody's guess."
Judging from informal surveys of growers, genetically engineered alfalfa is expected to achieve an adoption rate of 30 to 50 percent, with plantings more concentrated in the West, she said.
"We're hopeful, with the work that APHIS did in the EIS, it will stand up to the scrutiny of this new lawsuit," Nelson said.