Why the Philippines Supreme Court banned some field testing

The article below, by a biologist who now studies law, makes mincemeat of the arguments of the likes of the British pro-GMO campaigner Mark Lynas, who implied that the Philippines Supreme Court ruling to uphold the ban on GM Bt talong (eggplant) field trials was anti-science.
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Bt talong: Better safe than sorry

By Oliver M. Tuazon
Philippine Daily Inquirer, 13 Mar 2016
http://opinion.inquirer.net/93726/bt-talong-better-safe-than-sorry

(Editor’s Note: In the interest of fair play, we are running this piece explaining why the Supreme Court handed down last December a ruling banning the field testing of Bt talong.

The article is in response to the one written by Sarah Lynne S. Daway, Ph.D., assistant professor at the University of the Philippines (UP) School of Economics. Daway claims that Filipino experts in biotechnology, microbiology, biochemistry and other related fields have found that Bt talong and its testing are safe. [“Bt talong case: Striking at heart of PH concerns.” Talk of the Town. Feb. 14.])

Some Filipino scientists, as well as their foreign counterparts — mainly from the United States — have attacked the landmark decision of the Supreme Court on genetically modified organisms (GMOs). Some of the criticisms come from former professors and colleagues in the natural sciences whom I respect.

But now, as a student of law, I need to explain to them why I believe the Supreme Court is not “anti-science.” I aim to answer the misconceptions that arose from the decision of the Supreme Court [the “court”] in International Service for the Acquisition of Agri-Biotech Applications Inc. vs. Greenpeace Southeast Asia (Philippines), et al., or commonly known as the Bt talong (Bt eggplant) case [the “decision”].

Difference in jargon

The conflict between the views of some scientists on the one hand and the justices of the Supreme Court on the other may be more apparent than real. It may just be a failure to understand the jargon used by two fields of study—natural sciences and civil law.

I understand the apparent conflict on a personal level having been in the field of microbiology before I studied civil law. I had to grapple with many terms, which meant quite different things to me, while they were obvious to my classmates—not to mention my professors—who studied legal management or political science before entering law school.

The items that follow explain the reasoning of the court as well as the use of some legal jargon in the decision.

Assailed decision

The key misunderstanding in the Bt talong case arises from the phrasing of the first item in the dispositive portion of the decision, which provides, “The conduct of the assailed field testing for Bt talong is hereby PERMANENTLY ENJOINED.” (Emphasis in the original).

While it is true that to “permanently enjoin” something is to put an end to it for good, what the court was referring to was the “assailed” field testing of Bt talong, not all types of field testing involving GMOs — not even all field testing related to Bt talong.

“Assailed” is a qualifier that the court uses to refer to the matter at hand or to the particular question submitted to it for adjudication. It means that the judgment of the court is specific to that matter alone.

In short, the court never put a permanent ban on GMOs in general, nor on Bt talong in particular. The court is not guilty of the charge of killing Bt talong.

After a careful reading of the court’s 104-page decision, which is certainly not an easy-read, it is hard to conclude that the justices are anti-science. I admire the painstaking effort exerted by Justice Martin Villarama, who penned the decision on this landmark biotechnology issue, into writing the decision.

One could surmise a sincere effort to understand the science behind the issue, while at the same time focusing on the legal matters the court was called upon and mandated by the Constitution to decide.

Hot tub method

In fact, the Court of Appeals (CA), from which most of the transcripts of the two parties in the case were derived, made use of what is called the “hot tub” method in hearing the merits of the case. There is no better way to be assured of being completely heard—an essential element of due process—in a case like this one than the use of this method in which expert witnesses of both parties were called to testify at the same time.

In this way, the parties were given all possible chances to explain their positions and the justices were able to question them and their witnesses directly, clearing up possible confusions on either side about a field they may not have been very well-versed about, and allowing rebuttal — all at the same forum.

Expert witnesses divided

As the court noted in the decision, Greenpeace, et al. presented the following as expert witnesses: Ben Malayang III (Ph.D. in Wildlife Resource Science), Charito Medina (Ph.D. in Environmental Biology) and Tushar Chakraborty (Ph.D. in Biochemistry and Molecular Biology).

On the opposing side were Reynaldo Ebora (Ph.D. in Entomology), Saturnina Halos (Ph.D. in Genetics), Flerida Carifio (Ph.D. in Insecticide Toxicology) and Peter Davies (Ph.D. in Plant Physiology).

One could see that the court gave every opportunity to both sides to be heard and to present expert witnesses, all of whom are doctorate degree holders in the natural sciences. For this reason, it is not fair to call the court “anti-science,” which is like calling the expert witnesses, all of them scientists, “anti-science.”

The court does not want to claim to be more knowledgeable about science than the scientists themselves. If the scientists could not agree on the issue, how can they expect the court to resolve it positively?

Consensus conundrum

Some of the expert witnesses claimed that there was consensus on the safety of GMO technology to humans and to the environment, while witnesses on the other side claimed that there was no consensus. What would one expect the court to do?

The CA noted after the hot tub hearing that the opinions of the experts were “based on contrasting findings in hundreds of scientific studies conducted from the time Bt technology was deployed in crop farming. These divergent views of local scientists reflect the continuing international debate on GMOs and the varying degrees of acceptance of GM technology by states, especially the developed countries (US, EU, Japan, China, Australia, etc.).”

The court, in fact, quoted a study published in 2013 by the European Network of Scientists for Social and Environmental Responsibility, an international group of more than 90 scientists, academics and physicians. The network said “there is no scientific consensus on the safety of GM foods and crops.”

If there is really consensus on the safety of GM foods, the party claiming such consensus was not able to present sufficient evidence to support its claim.

Risks and precaution

One of the critics of the Supreme Court decision went to the extent of accusing the court of exposing farmers and consumers to “greater risks.” It was precisely on the subject of hazards and risks, however, where the disagreement among the expert witnesses was rather pronounced.

Someone, who may not be well-versed in the natural sciences, may get confused about the opposing claims. At any rate, the bottom line is that they could not agree on the potential hazards and risks of allowing further testing of Bt talong in the country.

This lack of agreement among the expert witnesses was probably the straw that broke the camel’s back, leading the court to apply the “precautionary principle” in environmental law in deciding the case.

Precautionary principle

This principle is applied by the court when there is a scientific possibility, albeit uncertain, that a particular human activity, which is the subject of controversy, may cause serious and irreversible damage to the environment.

The principle allows the court to decide on environmental problems, as Justice Diosdado Peralta has explained, “before ironclad scientific consensus” emerges, thereby bridging “the gap in cases where scientific certainty and factual findings cannot be achieved” (UST Law Review). The Rules of Procedure for Environmental Cases provide that “actions shall be taken to avoid or diminish that threat” to the environment.

It may be important for those who disagree with the court decision to understand that the precautionary principle “shifts the burden of evidence of harm away from those likely to suffer harm onto those desiring to change the status quo.” Given that the proponents of Bt technology were not able to sufficiently prove their claim, how could one expect the court to decide otherwise?

Surprise study

What the court did not take into account—as it may not have been presented to it by the parties for consideration—was the study published in 2014 by the Extreme Risk Initiative as part of the New York University (NYU) School of Engineering Working Paper Series on the application of the precautionary principle to GMOs.

The authors—led by NYU’s distinguished professor of risk engineering, Dr. Nassim Taleb—come from institutions, including the New England Complex Systems Institute, Institute of Mathematics and Theoretical Physics, and the University of East Anglia.

Systemic risk

The paper acknowledged that GMOs and their risks were the subject of debate. Using mathematical models, they argued that GMOs “fall squarely” under the precautionary principle because their risk was systemic.

This risk has two aspects: The widespread impact on the ecosystem and the widespread impact on health. Such widespread impact, according to the authors, implies that GMOs are within the domain of the precautionary principle.

Some may argue that the GMOs that are currently in circulation, especially in the United States, have been approved by the Food and Drug Administration (FDA). The same paper noted that “[u]nfortunately, the FDA does not require testing of GMOs as it has accepted industry claims that GMOs are no different from conventional breeding. This means there are few, and surely insufficient, tests of the harm that might be caused—or monitoring of the effects.”

Neurotoxins

Hence, the FDA “does not test the impact of chemical changes in GMO plants on human health or ecological systems. This despite experiments that show that increased concentrations of neurotoxins in maternal blood are linked to GMOs,” among other studies cited in the paper.

The authors further noted that “it is possible that there are significant impacts of neurotoxins on human cognitive function as a result of GMO modification, as FDA testing does not evaluate this risk.”

A rather pointed comparison was made by the authors between the risks from nuclear energy and those from GMOs. They noted that the harm brought about by nuclear energy was localized, while “GMOs have the propensity to spread uncontrollably and thus their risks cannot be localized.

“The crossbreeding of wild-type plants with genetically modified ones prevents their disentangling, leading to irreversible system-wide effects with unknown downsides.”

It concluded that “GMOs represent a public risk of global harm, while harm from nuclear energy is comparatively limited and better characterized.”

The authors advised policy makers to take “extreme caution,” with a caveat that “there is a difficulty for many in understanding the abstract nature of the engagement in risks and imagining the many possible ways that harm can be caused.”

The key reason for their advice could be this: “[W]e do not want to discover errors after considerable and irreversible environmental and health damage.” Hence, they endorsed the use of the precautionary principle “to prescribe severe limits on GMOs.”

The paper sounded like a scientific explanation of the Supreme Court’s decision on Bt talong, although it was published earlier.

What can be done

The court did not ban all future studies on GMOs. What it did was apply the precautionary principle in temporarily enjoining the “contained use, field testing, propagation and commercialization, and importation of genetically modified organisms” until a new administrative order (AO) is promulgated in accordance with existing laws of the country on the regulation of GMOs and their field testing.

There is no more space to discuss the rationale for declaring the AO null and void but the transcript of the decision makes clear the need for it.

What scientists could do is get involved in the drafting of this new AO and lobby for its speedy passage. I also invite them to read the decision in full and dissect it as they would a laboratory specimen, so that when the AO is drafted—with their participation—there will be no doubt left as to its conformity with law, jurisprudence and scientific rigor.

(The government announced last week that it had approved a more stringent set of regulations on the propagation and sale of GM seeds. The Department of Agriculture said the new guidelines took into account the issues that the Supreme Court raised when it voided Administrative Order No. 8 in December last year. — Ed.)

The Bt talong case exemplifies the court’s role in protecting our constitutionally guaranteed right to health and a balanced ecology. Given the results of the court proceedings—where both sides of the debate were given ample opportunity to be heard—the court was left with no choice but to apply the precautionary principle to the case, with no pronouncement on the science behind GMO technology.

In simple words, it seems to tell us “better be safe than sorry.”

(Oliver M. Tuazon is a former faculty member at the Institute of Biology, College of Science, UP Diliman. He finished his master’s degree in Microbiology under a sandwich program in which he did his course work at UP and his thesis work with a professor from Harvard Medical School/Massachusetts General Hospital in Boston, Massachusetts. He now reads law at the UST Faculty of Civil Law.)