U.S. Department of Agriculture Decided against Regulating the Planting of Genetically Modified Alfalfa — Possibly a Very Big Deal

09 March 2011

USDA’s non-regulation decision may signal that genetically modified crops will gain ascendance

In January this year — after the United States Supreme Court overturned a lower court’s nationwide injunction against planting genetically modified alfalfa — the U.S. Department of Agriculture began permitting the unregulated planting of genetically-modified “Roundup Ready Alfalfa.”

Roundup Ready Alfalfa is produced by Forage Genetics International and Monsanto. Monsanto manufactures Roundup, a glyphosate herbicide.

There are three positives to Roundup Ready Alfalfa. The new plant’s genetic resistance to glyphosate allows farmers to blanket spray for weeds, without damaging the crop. Blanket spraying reduces the number of toxic weeds in harvested hay. And Roundup’s glyphosate has a less negative impact on groundwater than other herbicides.

Curious, however, was the USDA’s apparently rather cavalier dependence on a self-interested party, Forage Genetics, to provide guidelines for planting the herbicide-resistant alfalfa:

On 27 January, USDA announced it would deregulate GM [genetically modified] alfalfa with no restrictions, concluding that agreements required by Forage Genetics would protect organic farmers.

These agreements minimize gene flow from GM alfalfa to conventional alfalfa by setting “isolation” distances between fields planted with the two kinds of crops.

According to a 2003 study, a buffer of 5 km between fields pollinated by honeybees reduces gene flow to less than 0.03%.

Another study, of fields pollinated by leafcutter bees, detected no transgenes beyond a buffer of 1.6 km.

Brad Brummond of North Dakota State University in Fargo says that growers remain concerned about gene flow and worry that transgenes could hopscotch through these buffers by pollinating alfalfa that blooms in ditches.

To help appease organic farmers, USDA plans to reinstate its Advisory Committee on Biotechnology and 21st Century Agriculture. That group will examine issues of coexistence, such as whether there should be an indemnity fund, created from fees levied on biotech companies, that would compensate farmers who find unwanted transgenes in their crops.

The obvious negative to the USDA decision is that we will have a significantly larger potential for an uncontrolled experiment in genetically modified organisms’ (GMO) gene transfer among plants, with possibly attendant effects on ecosystems, underway.

More litigation is likely.

Two predominant legal policy issues arise

Broadly implicit in any litigation about genetically modified agriculture are:

(1) What are the rights of the minority group (organic farmers and consumers) as opposed to those of the GMO-favoring majority?

(2) What level of proof of foreseeable harm (and to whom) is necessary, before the Supreme Court will allow lower courts to intervene before that harm is done?

This last question is a way of rephrasing the Precautionary Principle, which I have discussed at length before.

The Supreme Court decision was predominantly concerned with legal standards, rather than with the scientific issues that the GMO controversy is actually about

The pertinent Supreme Court decision (Monsanto Co., et al. v. Geertson Seed Farms, et al., 130 S. Ct. 2743 (2010) (Breyer recused)) had less to do with the science involved in the alfalfa controversy than with upholding legally well-accepted American legal and evidentiary standards that one must meet before preventing (“enjoining”) people from doing something.

At first glance, the specific issues the court finally decided were too narrow to interest to the majority of people concerned about genetically modified organisms.

The dispute boiled down to whether the District Court in California had acted according to legal standards when it:

(a) told the USDA that it could not even partially deregulate genetically modified alfalfa, unless it first completed an environmental impact statement,

and

(b) prohibited everyone else — with a few common sense, but inherently contradictory exceptions — from planting Roundup Ready Alfalfa before the USDA’s environmental impact statement was complete.

Don’t let the narrow legal issues obscure the very important general direction of the Court’s thinking

The judicial process involved in stopping people or agencies from acting is called “enjoining.” Injunctions are very difficult to get.

The Court’s emphasis on these legal elements of the injunction process is important for people who want to know how they can get the judicial system to prevent only amorphously foreseeable harms.

In the alfalfa case, the Court said about injunctions:

“[A] plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate:

(1) that it has suffered an irreparable injury;

(2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury;

(3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted;

and

(4) that the public interest would not be disserved by a permanent injunction.”

The traditional four-factor test applies when a plaintiff seeks a permanent injunction to remedy a NEPA [National Environmental Policy Act] violation.

Monsanto Co., et al. v. Geertson Seed Farms, et al., 130 S. Ct. 2743 (2010) (Breyer recused) (at page 14 of the URL-linked opinion) (reformatted, brackets added)

Regarding Roundup Ready Alfalfa, the 7 to 1 majority concluded that:

(1) The organic farmers could not show irreparable injury because:

(a) the USDA could deregulate just enough to plant test plots where no conceivable gene flow would result,

and

(b) the farmers could sue again, if the USDA looked as if it were about to do something harmful.

(2) The District Court’s nationwide injunction against planting Roundup Ready Alfalfa was an error because:

(a) in essence, it prohibited the USDA from partially deregulating so as to allow it to plant safe test plots,

and

(b) injunctions are a drastic remedy, not warranted when lesser measures (like partial deregulation) will work.

But what about dangers that are detectable only after we push the limits far enough to result in uncontrolled gene flow?

This is where the Precautionary Principle enters.

(1) How are we going to know how far pollinating insects and wind will carry gene flow, unless we:

(i) go too far in closing the geographic gaps between conventional and GMO alfalfa fields

(ii) fail to anticipate geographic and weather conditions that modify what we think we knew about safe distances?

(2) How do we know how introduced genes are going to play out once they do transfer into a much larger ecosystem?

And so on.

Slippery slopes are sometimes real, especially when the science is so difficult to do correctly

Though I agree with the Supreme Court in Monsanto Co. v. Geertson Seed Farms, given that the USDA could safely plant an irrigated test plot in the middle of an otherwise inhospitable desert, that does not mean that business pressures will not turn that experiment into a slide down the slippery slope into other places.

The fact that the USDA turned the creation of recommended planting instructions over to the Roundup Ready Alfalfa’s profit-motivated originators does not augur well.

Even on its merits, and without any gene flow at all, Roundup Ready Alfalfa may not be the win-win it looks like

Even aside from the risks of gene flow, at least some herbicide-tolerant plant experimentation is arguably short-sighted. Plant-eating and damaging organisms often develop resistance to chemicals and hostile organisms.

Glyphosate-tolerant alfalfa is going to be successful only a comparatively short time, after which Roundup-manufacturer Monsanto is going to be casting around for other ways to control the myriad glyphosate-resistant weeds that have evolved in the face of those farmers’ exclusive use of that herbicide.

It is well-known in medicine and agriculture that slowing the development of biological resistance requires a combination of drug and chemical regimens. Two, and preferably three or more, drugs or chemicals should be used at the same time.

When business ignores this principle, it harms the larger community. Pest and disease organisms that are resistant to chemical control and medications increase costs and the burden of financial and physical suffering.

In a narrow sense, business may be aiding its profits by guaranteeing that consumers will have to come back for another, more advanced product in the future.

The archetypal problem of damage to the commons

I am not persuaded that it makes sense for a society to allow self-interested parties to rather casually experiment — on a possibly high risk and potentially catastrophic — global scale at everybody else’s possible expense.

On the other hand, I agree with critics of the creativity-numbing effects of the Precautionary Principle, when we take its fearfulness too far.

In this case, however, alfalfa deregulation may have jumped the gun

According to writer Stokstad, the USDA plans to:

(a) make models of pollen flow more reliable

and

(b) research whether alfalfa could be further modified to prohibit transgenic pollen transfer, as is true for genetically modified popcorn.

Reasonable people might think that success in one or both of these endeavors would have preceded the USDA’s deregulation of the planting of genetically modified alfalfa.

Especially so because the USDA is, in effect, handing over the task of making recommendations for the safe planting of modified alfalfa to Forage Genetics International, inventor and manufacturer of product that organic farmers want regulated.

In short, this is arguably a case in which regulators and the industry that they allegedly regulate are too closely connected.

The Secretary of Agriculture’s questionable reasoning

Erik Stokstad’s Science article quotes Secretary of Agriculture Tom Vilsack as wanting to avoid having the courts determine agricultural biotech policy.

In Vilsack’s view, litigation would be expensive, drawn out, and cause uncertainty. All three, he thinks, would be bad for everybody.

Yet, as I pointed out above, Secretary Vilsack’s USDA made the decision to deregulate Roundup Ready Alfalfa even before the agency could express confidence in its model of pollen flow. This means that it cannot be even marginally sure that Forage Genetics International’s proposed planting guidelines are accurate.

Probably more litigation to come

Stokstad wrote that Andrew Kimbrell, who heads the Center for Food Safety, plans to challenge the legal adequacy of the environmental impact statement that the USDA is now acting on.

Given the unsavory mix of business self-interest, governmental abdication, and cart-before-the-horse science — my guess is that the Center for Food Safety will gain some initial traction.

At least until America’s Plutocracy rolls over common sense and arguable justice.

In closing, notice that the legal elements for obtaining injunctions work against environmental sanity

Given the anachronistic way the Supreme Court has acted throughout the majority of its history, the elements required in obtaining injunctions do not provide reason for optimism for environmentalists and devotees of common sense aspects of the Precautionary Principle.

Recall that the Supreme Court said:

“[A] plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate:

(1) that it has suffered an irreparable injury;

(2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury;

(3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and

(4) that the public interest would not be disserved by a permanent injunction.”

The traditional four-factor test applies when a plaintiff seeks a permanent injunction to remedy a NEPA [National Environmental Policy Act] violation.

Monsanto Co., et al. v. Geertson Seed Farms, et al., 130 S. Ct. 2743 (2010) (Breyer recused) (at page 14 of the URL-linked opinion) (reformatted, brackets added)

“Irreparable injury” is a subjective concept. Arguably, as long as the planet is still here and some people (maybe not “your” people) can live on it, nothing is irreparable.

Under American law, “monetary damages” can compensate for almost anything. And when money can’t, the courts pretend it does. Who, therefore, cares if natural alfalfa or anything else goes out of existence?

“Balance of hardships” is entirely subjective, exclusively based on a priori assumptions, and is very likely to be determined in the way that the majority of justices have their pockets lined.

The “public interest” element emphatically favors the plutocrats who already run American government. They are, by virtue of their power, the public interest.

Law, historically, is neither fair nor just because it is manipulated by powerful people and entities who are almost never interested in either

I am not optimistic about the success of organic alfalfa farmers’ coming legal battles.

PeteFree.com

U.S. Department of Agriculture Decided against Regulating the Planting of Genetically Modified Alfalfa — Possibly a Very Big Deal