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USDA's system invites lawsuits, researchers say

Published on November 12, 2010 3:01AM

Last changed on December 10, 2010 6:22AM

Environmental review failure could lead to overturned biotech crop permits


Capital Press

Two regulatory-policy researchers say the future will bring more lawsuits over genetically engineered crops if USDA doesn't change its system for environmental review and approval.

Henry Miller, a fellow at Stanford University's Hoover Institute, and Gregory Conko, a senior fellow at the Competitive Enterprise Institute, say USDA created the circumstances making it possible for each deregulation decision to be challenged in court.

Miller and Conko argue that point in their 2004 book, "The Frankenfood Myth."

"As long as USDA hasn't done its homework in getting its ducks in a row, there will be more lawsuits," Miller said.

Only a handful of such suits have been brought so far, among them an ongoing case over sugar beets in San Francisco and a fight over alfalfa that concluded in the U.S. Supreme Court earlier this year.

Previous cases have involved production of biotech turf grass and pharmaceutical proteins grown from corn and sugar cane. In all of them, judges ruled that APHIS should have conducted an environmental-impact statement -- the most comprehensive review required under a multi-tier structure laid out by the National Environmental Policy Act.

USDA's Animal and Plant Health Inspection Service has a long list of pending applications for deregulation requests, along with commercial and field-trial permits, for biotech crops. APHIS has deregulated several dozen such crops to date.

"In theory, every one of them could be overturned on the basis of failure to conduct an environmental impact statement," Conko said.

In the 1980s, as the federal government was mulling how to regulate transgenic food production, USDA and the Food and Drug Administration took separate paths, Conko said. FDA followed conclusions made by the National Academy of Sciences, which said a food item's biotech origin should not warrant special regulatory attention.

But USDA placed transgenic crops into its "plant pest" category, thus considering it dangerous until proven otherwise. The food industry was responding to consumer concern over biotech products by lobbying for stricter regulation.

USDA's designation meant each deregulation had to pass muster with NEPA on a case-by-case basis. Miller argues that a programmatic EIS, a document that would cover an entire category of crops, could solve the problem. But "I'm not holding my breath," he said. "USDA does not want to dismantle its bureaucracies."

After constructing a bureaucracy to handle crop deregulations individually, the agency is unlikely to change, he said.

"They've created a huge bureaucracy in order to regulate this stuff," Miller said. "It was an unscientific approach. It was just wrong."

The most recent biotech lawsuit was filed in Florida this year, challenging transgenic eucalyptus. Conko expects the next one could target a plum developed by USDA and university researchers to resist the plum pox virus. APHIS granted deregulation in 2007, but the crop still needs approval from the Environmental Protection Agency because it's classified as a biopesticide.

"If I were (biotech opponents), I would be ready with my lawsuit the day after EPA approves it," Conko said.

"In the case of these more recent genetically engineered crop plants, groups like the Center for Food Safety are very vocal about their opposition to crop biotechnology," Conko said. "They're clearly doing it in order to slow it down."


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