The first case involving genetically engineered crops is being argued in the U.S. Supreme Court. Monsanto is challenging a lower court’s decision to halt the sale of the agri-giant’s genetically engineered alfalfa seed without adequate environmental review. As Jessica Ilyse Smith reports, this precedent-setting case may determine how biotech crops are regulated in the future.
YOUNG: The U.S. Supreme Court has just heard its first case involving genetically engineered crops. The Monsanto Corporation is appealing a lower court decision that halts sales of genetically engineered alfalfa seed. So-called “Roundup Ready” alfalfa is engineered to survive when the herbicide Roundup is applied to the fields. Living on Earth’s Jessica Ilyse Smith reports that this case could set a precedent for the future of biotech agriculture.
SMITH: Four years ago The Center for Food Safety sued the U.S. Department of Agriculture claiming that Roundup Ready alfalfa was approved without adequate environmental review. The Center represents a coalition of seed farms, non-profits, and environmental groups that contend the use of genetically engineered alfalfa poses ecological harm.
Law professor Susan Schneider says the coalition wants the government to apply the National Environmental Policy Act, known as NEPA, before approving Roundup Ready alfalfa for use.
SCHNEIDER: NEPA requires that whenever a federal agency undertakes a federal action that can significantly affect the quality of the environment, the agency is supposed to consider and document potential environmental effects of their actions.
SMITH: Schneider is the director of the Agriculture and Food Law program at the University of Arkansas School of Law. She’s watching this case closely.
SCHNEIDER: I think that the notion that an environmental impact statement should be prepared prior to deregulating a genetically engineered crop is something that I think is coming of its own now.
SMITH: The lower court agreed with the Center that an Environmental Impact Statement was warranted—a first for a genetically engineered crop. The court ordered an injunction to restrict sales of Roundup Ready alfalfa until an environmental review was complete. Monsanto appealed. And the case has climbed the legal ladder to the U.S. Supreme Court. Garrett Kasper of Monsanto says the case is about more than just alfalfa.
KASPER: It boils down to three things: farmers, fairness and freedom to choose.
SMITH: Kasper says Monsanto wants farmers to have the autonomy to plant GE Alfalfa along with the pesticide Roundup so they can grow the crop weed-free.
KASPER: Our hope is that farmers will be able to count on the USDA’s approval of biotech crops and they’ll also be able to know that challenges to biotech is based on scientific evidence and, then, at the end of the day have the choice to use these products.
Alfalfa forage is used as feed for dairy cows and cattle. (Courtesy of Monsanto)
SMITH: Choice is the key word here. While Monsanto says farmers should have the choice to use genetically engineered alfalfa, The Center for Food Safety’s staff attorney George Kimbrell sees it another way. Kimbrell says the threat of spreading GE alfalfa demonstrates a loss of choice.
KIMBRELL: If you’re a farmer and you want to grow an organic alfalfa crop or a conventional alfalfa crop and you can’t because of contamination or the threat of contamination, there is no amount of money that will remedy that harm.
And to the extent that you are a consumer and you want to have the choice to buy non-genetically engineered food that is also an irreparable harm. That is, there is no amount of money that can give you back your choice.
SMITH: Alfalfa is used as a feed for cattle and dairy cows. Organic dairy farmers rely on their feed to be GE-free so they worry Roundup Ready alfalfa will threaten their ability to produce an organic product. To address this issue the USDA has set rules for how far apart farmers can plant GE seeds from other farms. Monsanto says these buffer zones are in their contracts, which farmers sign when they buy seeds.
But, some environmental groups point out that since alfalfa is a perennial crop it will stick around for many consecutive years. And alfalfa is openly pollinated by bees. Kimbrell from the Center for Food Safety says nature can’t always be regulated.
KIMBRELL: Bees are wild they don’t read signs. So even if you have an isolation distance of say 900 feet or 1400 feet, which is some of the ones they propose for example. If you have a wild honeybee that can fly five miles, that’s not going to do you much good.
SMITH: The Supreme Court will decide if there is enough harm to continue to halt the sales of Roundup Ready Alfalfa. In past cases it all came down to definitions: possibility of harm versus likely harm. Law professor Susan Schneider says in Monsanto’s case these definitions are also under scrutiny.
SCHNEIDER: Is it based simply on a percentage of how likely the harm is gonna be? Or in fact should we be looking at the specific harm that’s involved and how serious a danger that presents. And that’s where you get into some of the really technical legal issues that are before the court.
SMITH: To Garrett Kasper of Monsanto, the approval of Roundup Ready alfalfa does not present permanent harm.
KASPER: To call it irreparable harm is certainly a stretch. If anything it might be financial, which is reparable through other means.
SMITH: The Center for Food Safety’s George Kimbrell disagrees. He says there are environmental impacts linked to growing GE alfalfa—like contaminating wild alfalfa plants or damaging the organic market.
KIMBRELL: In the legal sense economic injury is not by itself irreparable but here when it’s intertwined with a permanent modification of nature it is, to the extent that you’ve got this environmental harm that is coupled with a very significant economic harm to farmers and exporters.
SMITH: Legal experts say this case will set an important precedent for the future regulation of genetically engineered plants and how environmental harms will be handled in the future. The Supreme Court case should be decided within the next few months. For Living on Earth, I’m Jessica Ilyse Smith.
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