Judges weigh short-, long-term risks
By WES SANDER
In his Feb. 25 opinion for the federal 9th Circuit Court of Appeals concerning biotech sugar beets, Judge Sidney Thomas invokes the book Jurassic Park.
Thomas raises the concept, put forth by author Michael Crichton, that "life finds a way." If one tinkers with nature, nature will thwart efforts to control the results, goes the argument -- just as Crichton's dinosaurs wreaked havoc after scientists hatched them back into existence.
The parallel helps illustrate arguments by environmentalists and organic growers, who say that allowing a single stage of the crop, as USDA did last September, opens the door to potential impacts down the road. The Center for Food Safety, Sierra Club and organic growers had argued it's impossible to fully prevent biotech contamination and the resulting harm.
That argument is proving successful in the larger case, which challenges USDA's permitting of Roundup Ready root stock for producing beet seed. But it failed when the appeals court considered whether to allow a court injunction to destroy the stecklings, which had already been planted by the time the suit was filed.
To win an injunction, plaintiffs must demonstrate imminent injury, and courts must balance it with expected injuries to the opposing party. Whereas a district court is considering potential harms in the long term, the appeals court had to weigh imminent harms in the short term.
The tension between those approaches explains how the industry has managed to stumble along, proceeding haltingly with each new stage of production while litigators keep trying to stop them.
For the industry, which produces mostly Roundup Ready beets, the result is largely positive because domestic sugar production manages to continue. But it's bad for individual growers, who have hung in limbo the past few months, unsure of what will be deemed legal as the season approaches.
Back in August, U.S. District Judge Jeffrey White concluded a three-year lawsuit by restricting the use of Roundup Ready sugar beets until USDA completes a more-thorough study to back its deregulation. White left it to USDA's Animal and Plant Health Inspection Service how to regulate the crop in the mean time.
To meet the year's imminent planting schedule, APHIS quickly issued permits to cultivate the root stock, or stecklings. The permits were legal and warranted, the feds said, because stecklings never flower, and thus cannot transfer genes. Furthermore, the permitted locations made contamination of organic crops impossible, they said.
But plaintiffs sued, saying the action violates the National Environmental Policy Act. The law says one stage of production cannot be segmented from another -- so USDA should have considered potential impacts once stecklings produce plants, plants produce seeds, seeds produce a root crop, and the root crop is harvested, transported and processed, plaintiffs argued. White said last fall he was inclined to agree.
But USDA and the industry have benefitted from the more immediate legal question underlying an injunction. If destroying a crop will disrupt an industry, costing it millions of dollars, that factor trumps expected impacts to the environment and to organic growers, which could result from future stages of cultivation and remain unspecified.
Judge Thomas stressed that the court's opinion says nothing about the larger case, considering only the danger of immediate harm required for an injunction.
"Perhaps, in the end, the entire controversy will be resolved, and we can say that the 'fair discourse hath been as sugar, [m]aking the hard way sweet and delectable.' " Thomas wrote, this time quoting Shakespeare's "Richard II." Then again, that's unlikely, given the contentious nature of the litigation, Thomas said.
It likely won't be sweet for the industry either. Plaintiffs' arguments of longer-term, conceptual harms have worked so far, spurring White to order a re-do of USDA's environmental work.
And that raises the bar for future deregulation, requiring longer environmental studies and potentially slowing down development of biotech crops.