Posted: Thursday, August 26, 2010 9:00 AM
Growers look to lawsuit briefs for clues to future regulations
By WES SANDER
The federal government could complete a short-term plan for allowing Roundup Ready sugar beets by spring, but any legal challenges would stall the process for up to two years.
That's how long USDA's Animal and Plant Health Inspection Service has said it will take to complete environmental documentation to support its deregulation of beet seeds with Monsanto Co.'s Roundup Ready genes.
Federal Judge Jeffrey White, ruling in September 2009 on a lawsuit filed by environmentalists to block use of the sugar beets, said under federal environmental rules APHIS must produce an environmental impact statement before it deregulates the seeds. On Aug. 13 he banned further planting of Roundup Ready sugar beets and turned ongoing regulation of the crop back to APHIS.
Although an APHIS spokesman said this week that no decision has been made regarding interim rules, a partial-deregulation plan could resemble rules that APHIS previously had asked the court to adopt.
APHIS had asked the court not to ban plantings -- making the seeds illegal to use -- and to approve instead a list of interim guidelines for growers and handlers.
The guidelines APHIS had proposed in court records include:
* Prohibiting use of the seeds in California -- where sugar beets are no longer a significant commodity -- and in 19 counties in Washington west of the Cascades.
* Imposing 4-mile buffer zones in Oregon's Willamette Valley between fields where the biotech seeds are produced and crops that could be cross-pollinated, including Swiss chard, sugar beets, table beets and fodder beets.
* A requirement that growers provide GPS coordinates of Roundup Ready beet fields to APHIS. The agency says it would disclose only the fields' distances from potential cross-pollinating crops, and only to growers who request the information.
* Detailed restrictions on how seed producers can handle biotech seeds, with a third party certifying compliance.
* Requirements that all root-crop growers remove flowering plants before they produce pollen or seed.
APHIS said in court papers filed in May that it was ready to begin the process of an environmental impact statement that would support its deregulation. The agency said it anticipated completing the document by May 2012. With the court hearing subsequently pushed back a month to August, it could mean the agency now anticipates completion by June 2012.
Partial deregulation would require its own public process, including an environmental review, to satisfy the National Environmental Policy Act.
But the organic farmers and environmentalists who sued to halt use of the seeds could challenge the agency's administrative process, slowing it along the way in order to delay use of the crops for at least the next two years, while APHIS completes its report.
Paul Atchitoff, an attorney with Earthjustice, one of the plaintiffs in the case, said he doesn't think the rules proposed in the court brief could be approved without APHIS first performing the more detailed environmental impact statement. Adoption of those rules without a statement would prompt plaintiffs to file suit, he said.
Judge Jeffrey White admonished APHIS for not having started the process, saying interim measures could have been implemented by now.
The agency "has already had more than sufficient time to take interim measures, but failed to act expediently," White wrote in his Aug. 13 decision revoking the seeds' deregulation.