GM Crops Go to US High Court, Environmental Laws on the Line
By Matthew Berger
IPS, 26 April 2010
http://www.ipsnews.net/news.asp?idnews=51193

WASHINGTON - The U.S. Supreme Court will hear arguments Tuesday in its first-ever case involving genetically modified crops. The decision in this case may have a significant impact on both the future of genetically modified foods and government oversight of that and other environmental issues.

The case, Monsanto Co. v. Geertson Seed Farms, revolves around an herbicide-resistant alfalfa, the planting of which has been banned in the U.S. since a federal court prohibited the multinational Monsanto from selling the seeds in 2007.

That decision found that the U.S. Department of Agriculture did not do a thorough enough study of the impacts the GM alfalfa would have on human health and the environment and ordered the agency to do another environmental impact statement (EIS) review.

Though a draft was released in December, "there is no anticipated date" for the final EIS, Suzanne Bond, a spokeswoman with the USDA division charged with regulating GM organisms - the Animal and Plant Health Inspection Service (APHIS) - told IPS.

The law under which organic farmers were allowed to challenge USDA's oversight of the GM alfalfa, the National Environmental Policy Act (NEPA), is what may suffer the most from the court's eventual decision, which is expected in June at the earliest. The law "requires federal agencies to integrate environmental values into their decision-making processes by considering the environmental impacts of their proposed actions and reasonable alternatives to those actions", said Bond.

It is also a key legal tool for environmental groups seeking to challenge those agencies' decisions. The vulnerability of NEPA is a key reason so many such groups have joined the plaintiffs by filing amicus briefs against Monsanto in this case.

The Centre for Biological Diversity, one of those groups, does not normally get involved in GM issues, said the Centre's Noah Greenwald, but this case "has broad implications for how governments do environmental analysis and when they need to prepare impact statements".

"The broader implications are why we got in this," he told IPS.

Doug Gurian-Sherman, who wrote several expert opinions for the earlier cases in lower courts and is a senior scientist at the food and environment programme of the Union of Concerned Scientists, which has also filed an amicus brief, pointed to the need for the type of citizen oversight of the government's own oversight that is granted by statutes like NEPA.

"The big issue here is how much deference should be given to a regulatory agency and its expertise in doing its job versus how much access or deference should be given to the public in having the ability to challenge the agency in court," he said.

"The issue here then becomes how amenable is the Supreme Court going to be in terms of allowing citizens to bring suit against an agency that is not doing its job, and that I think is the gist of what this decision may be," he added.

But the legal implications are only half the story. Also implicated, at least potentially, is the future of GM crops in the U.S. and elsewhere.

In the original court case, organic farmers argued that the genes of the GM alfalfa would be carried to neighbouring - potentially miles away - non-GM alfalfa by the bees that pollinate the crop and that genetic contamination would hurt their ability to market their alfalfa under the label "organic". This would also preclude them from exporting to countries that prohibit GM crops.

"Consumers may not accept products cross-contaminated with genetically-engineered components and you can test for those and testing is done pretty routinely and therefore the market could reject the contaminated organic crops," explained Gurian-Sherman.

In addition to this economic impact, they have argued that the planting of the Roundup Ready alfalfa that is at issue here, used in conjunction with the Monsanto-made herbicide Roundup, may also lead to increased herbicide-resistance in weeds.

APHIS largely dismissed this as an issue in its original analysis, says Gurian-Sherman, "even though over the last couple years the incidence of resistant weeds and the economic impacts they're having largely contradicts APHIS's analysis."

Though questions over the environmental and economic impacts of growing GM crops have existed for decades, the issue remains extremely complicated from an ethical and health perspective. Depending on how broad the Supreme Court's decision ends up being, it could go a long way to deciding the fate of other GM crops.

A case on GM sugar beets is currently ongoing. The court has allowed plantings this year, but has reserved the right to prohibit them in the future. The USDA is in the midst of preparing a draft impact statement for both these sugar beets and a GM creeping bentgrass.

Gurian-Sherman has serious concerns about the agency's actions on GM crops generally. "There's been several indications beside this case that USDA has not been really doing an adequate job regulating genetically-engineered seed”¦As a scientist, having reviewed a number of environmental assessments that the agency has done, in my opinion they've often done a very lax, scientifically often unsupportable job in their analyses. It's not like they've been completely negligent, but in my opinion they've made a number of errors in either scientific reasoning or in their data or data analysis."

Since 1992, USDA's APHIS division has granted non-regulated status to GM plants in response to 80 petitions, according to Bond, including multiple varieties of corn, soybeans, cotton, rapeseed, potato, tomato, squash, papaya, plum, rice, sugar beet, tobacco, alfalfa, flax, and chicory.

Tuesday's decision may have a significant influence on how that list changes in the future.