Capital Press

The 9th U.S. Circuit Court of Appeals has refused to overturn the USDA's decision to commercialize genetically engineered alfalfa.

The federal appeals court has upheld a previous decision, which found that USDA lacked the authority to regulate the biotech crop once it was determined not to be a plant pest risk.

Roundup Ready alfalfa was developed by Monsanto to withstand glyphosate herbicides and was fully deregulated in 2011 after the USDA's Animal and Plant Health Inspection Service, or APHIS, completed a court-ordered environmental impact statement.

The Center for Food Safety and other biotech critics worry the crop will cross-pollinate with organic and conventional alfalfa, harming the markets of the farmers that raise those crops.

They're also concerned about the development of glyphosate-resistant weeds, potential effects on endangered species from increased herbicide usage, as well as other environmental issues.

The 9th Circuit has held that the problems cited by the plaintiffs don't fall under the Plant Protection Act, or PPA, which gives the USDA authority to regulate biotech crops.

"The contamination of conventional alfalfa with the glyphosate-resistant gene could close foreign markets to U.S.-grown alfalfa. It could also force farmers of conventional alfalfa to incur additional costs testing and certifying that their alfalfa is not contaminated with the glyphosate-resistant gene," the ruling said.

"These concerns, however, are not the result of plant pest harms as defined under the PPA. APHIS thus has no power to regulate the adverse economic effects that could follow (Roundup Ready Alfalfa's) deregulation," the 9th Circuit said.

These other alleged harms from genetically engineered crops are not covered by the Plant Protection Act, and changing the law is up to Congress, not to federal courts, the ruling said.

The 9th Circuit also held that USDA didn't have to consult with other federal agencies about the crop's potential effects on endangered species because it was required to commercialize the crop.

"There is no point in consulting if the agency has no choices," the ruling said.

Andrew Kimbrell, executive director of the Center for Food Safety, said the group planned to appeal the "irresponsible decision" before a broader panel of 9th Circuit judges.

Kimbrell said he was surprised the 9th Circuit agreed with USDA's position that the law forced the deregulation of biotech crops found not to be plant pest risks.

"It's a 'Hail Mary' pass by the other side. Sometimes they work," he said.

The ruling does leave open an opportunity for the group to continue challenging the USDA's deregulation of the crop -- it can petition to have it listed as a noxious weed, Kimbrell said.

The opinion also indicates that the plaintiffs can challenge the U.S. Environmental Protection Agency's regulation of glyphosate as it relates to the crop, he said.

"Now that they say, 'Go sue another agency,' we will sue another agency," Kimbrell said.

The group plans to take these steps simultaneously while it appeals the recent decision, he said.

The Monsanto Co. applauded the 9th Circuit's decision, saying it will provide legal certainty for alfalfa farmers and supports the USDA's oversight of genetically engineered crops.

"No court has ever questioned the safety of ag biotech crops in the course of hearing lawsuits questioning USDA's regulation of ag biotech," said Kyle McClain, the company's chief litigation counsel, in a statement. "The decision is an important reaffirmation of USDA's process for regulating biotechnology improved crops."

The USDA's Animal and Plant Health Inspection Service could not immediately be reached for comment.

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