Bio-beets in limbo
APHIS regulations may come too late for many sugar beet growers
By WES SANDER
Briefings filed by USDA in a lawsuit over biotech sugar beets suggest the agency couldn't approve conditional use of Monsanto Co.'s Roundup Ready seeds until next spring at the earliest.
On Aug. 13 a federal judge banned further unrestricted planting of the genetically modified crop and put its regulation back into the hands of USDA's Animal and Plant Health Inspection Service. The agency is expected to attempt some form of "partial deregulation," which involves public and environmental review. The designation could allow some use of the seeds under restricted conditions.
APHIS has not made any comment regarding a potential timetable for partial deregulation since the ruling.
The agency faces pressure from the industry, with growers hoping for word on what to expect by December, when they must buy seeds for next spring. Meanwhile, environmental lawyers say they expect to challenge the agency's effort as it moves forward.
"Our stomachs are really tight over this," said Duane Grant, chairman of Snake River Sugar Co., a grower's cooperative in Idaho. "I've got a huge investment in equipment, in land, in beet stock. It's all riding right now on that fulcrum of, what am I going to be able to plant?"
The suit was filed by organic growers and environmentalists in January 2008, as most growers began using seeds with Monsanto's genes. The genes had been deregulated in 2005. Roundup Ready beets now account for more than 95 percent of the sugar beet crop. Sugar beets account for about 50 percent of the domestic sugar crop.
In September, U.S. District Judge Jeffrey White ruled that APHIS must produce an environmental impact statement to deregulate the seeds under the National Environmental Policy Act. In May, APHIS said in a court briefing it could complete the statement by 2012.
On Aug. 13, White ruled in favor of the plaintiffs and banned any new plantings in the interim. White also denied an injunction that would have put the court's weight behind enforcement of the seeds' newly regulated status. He thus kicked the task to APHIS, saying there was no reason pressing enough to involve the court in rule-making and enforcement details, the normal purview of APHIS.
In May, APHIS told the court that any revocation of its deregulation should be delayed until new rules are developed. The agency asked for nine months, expecting a hearing and White's decision in July; with the decision instead coming in August, that could mean that APHIS anticipates implementing new rules by May.
But plaintiffs in the case have said they'll be watching the process and expect to slow it with court challenges. Lead attorney Paul Atchitoff of Earthjustice said he anticipates APHIS attempting illegal maneuvers.
"They seem to be anxious to see if they can circumvent the order," Atchitoff said. "Are they actually going to do a thorough environmental review? Time will tell. But we will be watching them."
APHIS spokeswoman Suzanne Bond said on Aug. 18 the agency was still reviewing its options, and could offer no indication of anticipated timelines.
Because White limited his decision to future crops, handling of root and seed crops already cultivated or planted prior to Aug. 13 can continue unrestricted.
Growers would normally purchase seed for next spring by December, so they'll be left in limbo this year, said Grant of Snake River Sugar.
Conventional seed exists, but no one knows exactly how much, Grant said. And because most of it likely dates to pre-2008 -- when the industry shifted -- its potency will have weakened with age, he said.
"The first thing we would like to see is a statement by APHIS, confirming that they'll be looking to publish interim measures," Grant said. "We'd like to see that in the next couple of weeks."
In his 10-page decision Aug. 13, White admonished the agency for not having already completed much of the process. Early in the case's remedy phase this year, White indicated that plaintiffs had made a good case, thus the agency should have anticipated the end result, White said.
APHIS "has already had more than sufficient time to take interim measures, but failed to act expediently," White wrote.