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April 26, 2010

US Supreme Court Considers Genetically Modified Crops

by Steve Baragona

Case questions whether environmental law has gone too far

For the first time, the U.S. Supreme Court is hearing oral arguments in a case involving genetically modified crops. The crops' safety is not at issue in this case, but their potential economic impact is. The case may have ramifications beyond GM crops.

Alfalfa is the fourth most widely grown crop in the United States. Farmers harvested 8.5 million hectares last year. The case being argued before the Supreme Court on Tuesday, April 27, involves a genetically modified variety of alfalfa designed by the seed and biotech company Monsanto to grow even when farmers spray it with a chemical that kills weeds. The U.S. Animal and Plant Health Inspection Service (APHIS) approved the crop in 2005.

"From what I can see, APHIS really did not do due diligence under these regulations," says Doug Gurian-Sherman of the Union of Concerned Scientists, an environmental group. "It was so far from what it was supposed to be doing."

Pollen contamination

Gurian-Sherman says APHIS should have looked more closely, in particular, at the risk of cross-contamination. Organic alfalfa farmers contend they could lose money if wind-blown pollen from their neighbors' GM alfalfa were to contaminate their crop, because buyers would no longer consider their alfalfa organic.

An organic seed company took Monsanto to court over the issue. It won an injunction forcing the GM seeds off the market until APHIS does a full environmental impact study.

Monsanto appealed, saying the experts at APHIS knew what they were doing when they approved the crop without the study. The largest U.S. farmers' organization, the American Farm Bureau Federation, agrees. It says the lower court's injunction creates uncertainty that hurts farmers who grow GM crops.

"If I plant this in the ground, is a court three years down the road going to come and mess everything up and tell me I can't do it anymore?" she asks. "That costs money, just like it costs the organic farmer money if there's cross-contamination."

Out-of-control regulation...

Quist notes that the organic seed company didn't have to present any evidence that it was actually harmed before the court issued the injunction. The case was brought under a federal environmental law that she says some courts are interpreting too loosely.

"When those lawsuits are filed," she says, "harm is presumed. It's just automatic. You get to file a lawsuit and you get this extraordinary remedy without having to show the requisite level of harm, and that really needs to stop."

The case has attracted attention from other groups, including the petroleum, home building and pesticide industries, that believe the environmental law has gone too far. Along with the Farm Bureau, officials of those industries have written to the Supreme Court backing Monsanto in the lawsuit.

...or democracy in action?

On the other hand, the organic seed company's backers include the Humane Society, the Natural Resources Defense Council and the Union of Concerned Scientists, whose Doug Gurian-Sherman says the ability of citizens' groups to question the decisions of regulators is one of American democracy's important checks and balances.

"If the court moves towards choking off some of those checks and balances in the form of the public's ability to challenge an agency, I think that would have some chilling effect on the operation of science in our democracy," he says.

The Supreme Court is expected to decide the case in June.