Editorial

There's always a temptation to read too much into a court's decision on a lawsuit -- particularly if that decision favors your point of view. That's where advocates for use of genetically modified crops may end up after the U.S. Supreme Court last week said a district judge made serious errors in halting new plantings of Roundup Ready Alfalfa after the spring of 2007.

That court order also sent the USDA to work to replace its 2005 finding of "no significant" environmental impact. A full-blown statement is now out in draft form: It repeats the same "no significant impact" finding.

Monsanto v. Geertson Seed Farms deals with a few legal points about the permanent injunction issued by Judge Charles Breyer.

There never was a trial on the issue of possible cross-pollination between genetically modified and conventional alfalfa because the suit was brought alleging that an environmental impact statement was necessary, rather than the less demanding "environmental assessment" process USDA used.

The high court tested Breyer's injunction by using legal standards that must be met in issuing any injunction, updated by the Supreme Court most recently in 2006.

"In our view, none of the traditional four factors governing the entry of permanent injunctive relief supports the district court's injunction prohibiting partial deregulation," said Justice Samuel Alito, writing for the seven-member majority.

"You can't hijack the process through litigation," said David Snively, attorney for Monsanto.

That single finding is significant, given the 19 transgenic crops USDA has under consideration for deregulation, and the similar lawsuit already in the courts challenging Roundup Ready sugar beets on the question of an environmental impact statement instead of an environmental analysis.

As Alito noted, if there is a real concern about cross-pollination between transgenic and conventional seed crops, USDA can impose a separation in seed production areas.

The trial judge, in granting the injunction now set aside by the high court, wrote, "The parties' experts disagreed over virtually every factual issue relating to possible environmental harm, including the likelihood of genetic contamination...."

What was wrong, Alito said, is banning all new planting without letting USDA craft a partial deregulation order that could be legally challenged on its own merits. "Instead, the district court barred the agency from pursuing any deregulation -- no matter how limited the geographic area in which planting of RRA would be allowed, how great the isolation distances mandated between RRA fields and fields for growing non-genetically engineered alfalfa, ..." Alito wrote.

There's a political footnote in the Supreme Court decision: The ink was hardly dry before 56 members of Congress sent a letter to USDA urging that RRA continue to be regulated. Several Western congressmen and senators signed off on the letter, citing possible impacts on organic dairy farms and the organic industry, and potential loss of export markets to countries that ban genetically engineered crops.

We'd like to see the issue settled, but given the hundreds of pages from dueling expert witnesses filed with the trial court, that may take a while. Don't read too much into last week's opinion. There's more to come.