Posted: Thursday, December 15, 2011 10:00 AM
Dave Wilkins/Capital Press
A sign marks a Roundup Ready alfalfa field near Jerome during the 2007 growing season. Roundup Ready alfalfa has been in limbo since a federal judge halted sale of the genetically modified seed a year ago. Monsanto estimates that there are 220,000 acres of Roundup Ready alfalfa in the United States. About 10 percent of those acres are in Idaho, company officials said.
Plaintiffs argue that Roundup Ready alfalfa poses threat
The USDA's authority over genetically engineered crops was a top subject during recent oral arguments in a lawsuit over biotech alfalfa.
Attorneys for the agency repeatedly argued that its authority was limited, claiming "its hands were tied" in deciding to recommercialize the crop, which can withstand glyphosate herbicides.
The USDA's Animal and Plant Health Inspection Service, or APHIS, had to base its decision on whether transgenic Roundup Ready alfalfa posed a plant pest risk similar to a virus or bacteria, attorneys said.
"In other words, APHIS is not the policy decision-maker in Congress' stead to decide whether, as a matter of market preference, organic crops, conventional crops or indeed genetically engineered crops should dominate," said Eric Womack, an attorney for the agency.
The USDA fully deregulated biotech alfalfa in early 2011 after completing a court-ordered environmental review of the crop. In 2007, a federal judge had overturned the agency's previous approval of the crop.
The Center for Food Safety, a nonprofit critical of transgenic crops, filed a lawsuit against the USDA, claiming Roundup Ready alfalfa was deregulated in violation of administrative and environmental laws.
The group fears biotech alfalfa will cross-pollinate with organic and conventional crops, among other issues.
During oral arguments on Dec. 9, attorneys for the agency told Senior District Judge Samuel Conti the plaintiff's expectations were unrealistic.
The group was making an "extraordinary request" of the federal government, asking the USDA to regulate a transgenic crop simply because certain individuals object to it due to market preferences, Womack said.
Under that theory, sweet corn producers could block the commercialization of a feed corn variety simply because they're afraid of cross-pollination that could leave with them with an inedible crop, he said.
"If that were the case, your honor, because of the way genetic transfer works, it would be unmanageable for the agency to regulate this regulatory structure," Womack said.
The USDA also cited its limited authority in regard to allegations that the approval violated the Endangered Species Act by exposing sensitive plants and animals to increased usage of glyphosate herbicides.
Clifford Stevens, another attorney for the agency, argued that the USDA was not required to consult with the U.S. Fish and Wildlife Service because the crop itself would have no effect on listed species.
As for the claim that Roundup Ready alfalfa will cause more spraying of glyphosate, that matter is out of the USDA's hands, Stevens said.
If biotech critics have a problem with the usage of glyphosate on alfalfa, they should take up the issue with the U.S. Environmental Protection Agency, which regulates pesticides, he said. "They have sued the wrong party."
Paul Achitoff, an attorney for the plaintiffs, rejected the arguments that USDA was legally bound to deregulate the crop.
Such an interpretation of the law would render the environmental review process a "charade" since the agency had investigated alternatives that were actually "illusory" since deregulation was the only choice, he said.
In fact, the USDA has the legal authority to examine a broad range of factors in deciding whether to deregulate a genetically engineered crop, Achitoff said.
"That's the problem that permeates this case. Not that they have abused discretion, but they have refused to acknowledge that they even have it," he said.
In regard to the Endangered Species Act issue, Achitoff said the USDA must look at the consequences of increased glyphosate usage -- the EPA's legalization of the herbicide itself is irrelevant to the fact that Roundup Ready alfalfa will cause it to be used more frequently.
The USDA wants to avoid consulting about the effect of biotech alfalfa on listed species because it fears that would throw a wrench into the commercialization process, Achitoff said.
That's due to the agency's experience with Roundup Ready bentgrass, which was not deregulated due to its potential to jeopardize protected species, he said.
"APHIS doesn't want to take the risk that what happened with Roundup Ready bentgrass will happen with Roundup Ready alfalfa, so they have cut Fish and Wildlife out of the picture," Achitoff said.