Environmental Reviews

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SandBar 9:3, August, 2010 Recommended citation: Stephanie Showalter, Environmental Reviews for “Roundup Ready” Crops Inadequate , 9:3 SandBar 13 (2010). Environmental Reviews for “Roundup Ready” Crops Inadequate Stephanie Showalter, J.D., M.S.E.L. In June, the U.S. Supreme Court issued its ruling in Monsanto Co. v. Geertson Seed Farms,1 the first case the court has heard involving genetically modified organisms. Geertson Seed Farms, a conventional alfalfa farm, and environmental groups had sued the U.S. Department of Agriculture (USDA) over its decision to deregulate the use of “Roundup Ready” alfalfa without preparation of an environmental impact statement. In the late 1990s, Monsanto, the manufacture of Roundup, genetically engineered (GE) a number of important agricultural crops, including alfalfa, canola, corn, soybeans, and sugar beets, to be resistant to the herbicide. These GE crops can withstand doses of Roundup, but not other brands of herbicides, that would otherwise kill them. Monsanto’s GE crops have proven to be quite popular with farmers. Ninety percent of the soybeans and seventy percent of the corn and cotton grown in the United States are Roundup Ready.2 Background The current legal battle over Roundup Ready alfalfa started in 2004. That year, Forage Genetics, the company licensed by Monsanto to develop and grow the GE alfalfa seed, filed a petition with the Animal and Plant Health Inspection Service (APHIS) within the USDA for a determination that Roundup Ready alfalfa does not pose a plant pest risk. At the time, Roundup Ready alfalfa was regulated by APHIS as a “regulated article.” Pursuant to the Plant Protection Act of 2000, permits are required for the importation, interstate transportation, and environmental release of “regulated articles,” genetically engineered organisms considered to be plant pests. Anyone may petition APHIS for a determination that a particular regulated article should not be regulated because it does not pose a plant pest risk, i.e. it does not “directly or indirectly injure or cause disease or damage in or to any plants or parts thereof.”3 Prior to its decision on Forage Genetics’ petition, APHIS had authorized almost 300 field trials of Roundup Ready Alfalfa over an eight-year period.4 The cat was already out of the bag, so to speak. To comply with the National Environmental Policy Act (NEPA), APHIS conducted an analysis of the potential environmental impact of the requested deregulation. The Environmental Assessment (EA), which accompanied APHIS’ decision to deregulate Roundup Ready alfalfa, was a mere 18 pages.5 A more-detailed Environmental Impact Statement (EIS) was not prepared because AHPIS determined in the EA that the deregulation of Roundup Ready alfalfa would not have a significant effect on the environment. Commercial planting of Roundup Ready alfalfa began in July 2005. The Geertson Seed Farms lawsuit was filed shortly thereafter. Sales and planting of Roundup Ready alfalfa seed continued, however, because the plaintiffs did not seek an order restraining the defendants’ actions while the court decided the merits of the case, known as preliminary injunctive relief. By the time the district court issued its ruling in early 2007 more than 3,000 farmers in 48 states planted an estimated 220,000 acres of Roundup Ready alfalfa.6 NEPA Violation The district court determined that APHIS violated NEPA by not preparing an EIS. The court identified two primary problems with the EA prepared by APHIS. First, the court found that the agency failed to adequately consider the extent to which the herbicide-resistant gene could be transferred to organic and conventional alfalfa. Some genetic drift is unavoidable between GE and non-GE crops. Farmers cannot control the way the wind blows or the path that bees and other pollinators choose. In addition, the court found that APHIS failed to adequately consider the extent to which deregulation would contribute to the development of Roundup-resistant weeds. Evidence is mounting that Roundup Ready agriculture is creating “superweeds” – weeds resistant to glyphosate, the active ingredient in Roundup and some other commercial herbicides.7 Given the known risk of genetic drift and weed resistance, the court found that it was improper for APHIS to conclude that there would be no significant environmental impact. An EIS would have to be prepared. This ruling placed the district court judge in a difficult position. The NEPA violation warranted vacating APHIS’ deregulation decision. Roundup Ready alfalfa would once again be a “regulated article,” the planting of which would require a permit. Thousands of farmers, however, had planted alfalfa without permits based on APHIS’ administrative finding that it was no longer regulated. Should those farmers be required to pull out the existing crop, thereby bearing a significant financial burden for reasonable reliance on an APHIS administrative decision? In crafting the remedy for the NEPA violation, the district court judge attempted to find some middle ground. Farmers that had already planted their fields or purchased seeds could continue their operations if they complied with certain guidelines suggested by APHIS, such as mandatory isolation distances between GE and non-GE fields. All future plantings of Roundup Ready alfalfa were banned until APHIS prepares a full EIS on the deregulation decision. Appeal APHIS, Monsanto, and Future Genetics appealed the district court’s order. After the Ninth Circuit affirmed the district court’s decision, the defendants appealed to the U.S. Supreme Court. The question on appeal was a narrow one: had the district court judge exceeded his authority by prohibiting all future plantings of Roundup Ready alfalfa pending completion of an EIS? The Supreme Court agreed with the defendants that the district court’s remedy was too broad. Upon review of a deregulation petition, APHIS may either deny the petition or “approve the petition in whole or in part.”8 The district court’s injunction, however, stated that “before granting Monsanto’s deregulation petition, even in part, the federal defendants shall prepare an [EIS].”9 The Supreme Court ruled that the district court’s injunction was improper because it prohibited the agency from pursuing “any deregulation – no matter how limited the geographic area…, how great the isolation distances…, how stringent the regulations governing harvesting…, how robust the enforcement mechanisms…, and consequently – no matter how small the risk that the planting authorized under such conditions would adversely affect the environment… .”10 Conclusion The case now returns to the district court for the judge to issue a new remedial order consistent with the Supreme Court’s opinion. While initial media coverage of the case framed it as a win for Monsanto,11 it is a pretty minor victory. The defendants did not challenge the existence of a NEPA violation on appeal. The Supreme Court’s ruling therefore does not change the status quo. Roundup Ready alfalfa cannot be planted until APHIS issues a new deregulation decision, presumably after the agency prepares a full EIS. Alfalfa isn’t the only Roundup Ready crop embroiled in legal controversy. In September 2009, a California district court ruled that APHIS’ decision to deregulate Roundup Ready sugar beets violated NEPA.12 Of key concern to the plaintiffs in this case were the environmental and economic impacts of cross-pollination of sugar beets, Swiss chard, and table beets grown in one valley in Oregon. Interestingly, the court focused on consumer choice, as opposed to consumer harm, finding that “the potential elimination of farmer’s choice to grow non-genetically engineered crops, or a consumer’s choice to eat nongenetically engineered food, and an action that potentially eliminates or reduces the availability of a particular plant has a significant effect on the human environment.”13 Because APHIS failed to adequately consider the effects of gene transmission on conventional farmers and consumers, its finding of no significant environmental impact was unconvincing to the court. In August 2010, the court issued an order prohibiting all future plantings of Roundup Ready sugar beets until APHIS remedies its NEPA violations.14 As the battle over GE crops rages, the facts remain murky. Most of the controversy centers on impacts to organic agriculture. While genetic drift does occur, it is unclear whether, and to what extent, harm to the environment occurs. In fact, proponents of GE crops suggest that there can be an environmental benefit through less pesticide applications and less tillage. Economic impacts, however, can be severe if the fields of organic farmers are contaminated with the glyphosate-resistant gene and their access to organic markets thereby foreclosed. More information is clearly needed. Ideally these information needs would be met, at least in part, by APHIS’ forthcoming environmental reviews. Endnotes 1. Monsanto Co. v. Geertson Seed Farms, 130 S.Ct. 2743 (2010). 2. William Neuman and Andrew Pollack, Farmers Cope with Roundup-Resistant Weeds, The New York Times, May 3, 2010. 3. See, 7 C.F.R. §§ 340.1, 304.6. 4. Monsanto, 130 S. Ct. at 2750. 5. Matt Jenkins, Brave New Hay, High Country News, June 11, 2007. 6. Monsanto, 130 S. Ct. at 2751. 7. Researchers have identified 10 Roundup-resistant weeds infecting 22 states. Neuman and Pollack, supra note 1. 8. 7 C.F.R. § 340.6(d)(3)(i) (emphasis added). 9. Monsanto, 130 S. Ct. at 2757 (emphasis in original). 10. Id. at 2759. 11.See, i.e., Andrew Pollock, Justices Back Monsanto on Biotech Seed Planting, New York Times, June 21, 2010; Brent Kendall, High Court Sides with Monsanto in Alfalfa Case, Wall Street Journal, June 22, 2010. 12.Center for Food Safety v. Vilsack, Orders regarding Cross-motions for Summary Judgment, Case no. C 08-00484 JSW (Sept. 9, 2009). 13. Id. at *13. 14.Center for Food Safety v. Vilsack, Order regarding Remedies, Case no. C 08-00484 JSW (Aug. 13, 2010).
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SandBar 9:3, August, 2010
Recommended citation: Stephanie Showalter, Environmental Reviews for “Roundup Ready” Crops Inadequate , 9:3 SandBar 13 (2010).

Environmental Reviews for “Roundup Ready” Crops Inadequate

Stephanie Showalter, J.D., M.S.E.L.

In June, the U.S. Supreme Court issued its ruling in Monsanto Co. v. Geertson Seed Farms,1 the first case the court has heard involving genetically modified organisms. Geertson Seed Farms, a conventional alfalfa farm, and environmental groups had sued the U.S. Department of Agriculture (USDA) over its decision to deregulate the use of “Roundup Ready” alfalfa without preparation of an environmental impact statement. In the late 1990s, Monsanto, the manufacture of Roundup, genetically engineered (GE) a number of important agricultural crops, including alfalfa, canola, corn, soybeans, and sugar beets, to be resistant to the herbicide. These GE crops can withstand doses of Roundup, but not other brands of herbicides, that would otherwise kill them. Monsanto’s GE crops have proven to be quite popular with farmers. Ninety percent of the soybeans and seventy percent of the corn and cotton grown in the United States are Roundup Ready.2

Background
The current legal battle over Roundup Ready alfalfa started in 2004. That year, Forage Genetics, the company licensed by Monsanto to develop and grow the GE alfalfa seed, filed a petition with the Animal and Plant Health Inspection Service (APHIS) within the USDA for a determination that Roundup Ready alfalfa does not pose a plant pest risk. At the time, Roundup Ready alfalfa was regulated by APHIS as a “regulated article.” Pursuant to the Plant Protection Act of 2000, permits are required for the importation, interstate transportation, and environmental release of “regulated articles,” genetically engineered organisms considered to be plant pests. Anyone may petition APHIS for a determination that a particular regulated article should not be regulated because it does not pose a plant pest risk, i.e. it does not “directly or indirectly injure or cause disease or damage in or to any plants or parts thereof.”3
Prior to its decision on Forage Genetics’ petition, APHIS had authorized almost 300 field trials of Roundup Ready Alfalfa over an eight-year period.4 The cat was already out of the bag, so to speak. To comply with the National Environmental Policy Act (NEPA), APHIS conducted an analysis of the potential environmental impact of the requested deregulation. The Environmental Assessment (EA), which accompanied APHIS’ decision to deregulate Roundup Ready alfalfa, was a mere 18 pages.5 A more-detailed Environmental Impact Statement (EIS) was not prepared because AHPIS determined in the EA that the deregulation of Roundup Ready alfalfa would not have a significant effect on the environment.
Commercial planting of Roundup Ready alfalfa began in July 2005. The Geertson Seed Farms lawsuit was filed shortly thereafter. Sales and planting of Roundup Ready alfalfa seed continued, however, because the plaintiffs did not seek an order restraining the defendants’ actions while the court decided the merits of the case, known as preliminary injunctive relief. By the time the district court issued its ruling in early 2007 more than 3,000 farmers in 48 states planted an estimated 220,000 acres of Roundup Ready alfalfa.6

NEPA Violation
The district court determined that APHIS violated NEPA by not preparing an EIS. The court identified two primary problems with the EA prepared by APHIS. First, the court found that the agency failed to adequately consider the extent to which the herbicide-resistant gene could be transferred to organic and conventional alfalfa. Some genetic drift is unavoidable between GE and non-GE crops. Farmers cannot control the way the wind blows or the path that bees and other pollinators choose. In addition, the court found that APHIS failed to adequately consider the extent to which deregulation would contribute to the development of Roundup-resistant weeds. Evidence is mounting that Roundup Ready agriculture is creating “superweeds” – weeds resistant to glyphosate, the active ingredient in Roundup and some other commercial herbicides.7 Given the known risk of genetic drift and weed resistance, the court found that it was improper for APHIS to conclude that there would be no significant environmental impact. An EIS would have to be prepared.
This ruling placed the district court judge in a difficult position. The NEPA violation warranted vacating APHIS’ deregulation decision. Roundup Ready alfalfa would once again be a “regulated article,” the planting of which would require a permit. Thousands of farmers, however, had planted alfalfa without permits based on APHIS’ administrative finding that it was no longer regulated. Should those farmers be required to pull out the existing crop, thereby bearing a significant financial burden for reasonable reliance on an APHIS administrative decision? In crafting the remedy for the NEPA violation, the district court judge attempted to find some middle ground. Farmers that had already planted their fields or purchased seeds could continue their operations if they complied with certain guidelines suggested by APHIS, such as mandatory isolation distances between GE and non-GE fields. All future plantings of Roundup Ready alfalfa were banned until APHIS prepares a full EIS on the deregulation decision.

Appeal
APHIS, Monsanto, and Future Genetics appealed the district court’s order. After the Ninth Circuit affirmed the district court’s decision, the defendants appealed to the U.S. Supreme Court. The question on appeal was a narrow one: had the district court judge exceeded his authority by prohibiting all future plantings of Roundup Ready alfalfa pending completion of an EIS? The Supreme Court agreed with the defendants that the district court’s remedy was too broad. Upon review of a deregulation petition, APHIS may either deny the petition or “approve the petition in whole or in part.”8 The district court’s injunction, however, stated that “before granting Monsanto’s deregulation petition, even in part, the federal defendants shall prepare an [EIS].”9 The Supreme Court ruled that the district court’s injunction was improper because it prohibited the agency from pursuing “any deregulation – no matter how limited the geographic area…, how great the isolation distances…, how stringent the regulations governing harvesting…, how robust the enforcement mechanisms…, and consequently – no matter how small the risk that the planting authorized under such conditions would adversely affect the environment… .”10

Conclusion
The case now returns to the district court for the judge to issue a new remedial order consistent with the Supreme Court’s opinion. While initial media coverage of the case framed it as a win for Monsanto,11 it is a pretty minor victory. The defendants did not challenge the existence of a NEPA violation on appeal. The Supreme Court’s ruling therefore does not change the status quo. Roundup Ready alfalfa cannot be planted until APHIS issues a new deregulation decision, presumably after the agency prepares a full EIS.
      Alfalfa isn’t the only Roundup Ready crop embroiled in legal controversy. In September 2009, a California district court ruled that APHIS’ decision to deregulate Roundup Ready sugar beets violated NEPA.12 Of key concern to the plaintiffs in this case were the environmental and economic impacts of cross-pollination of sugar beets, Swiss chard, and table beets grown in one valley in Oregon. Interestingly, the court focused on consumer choice, as opposed to consumer harm, finding that “the potential elimination of farmer’s choice to grow non-genetically engineered crops, or a consumer’s choice to eat nongenetically engineered food, and an action that potentially eliminates or reduces the availability of a particular plant has a significant effect on the human environment.”13 Because APHIS failed to adequately consider the effects of gene transmission on conventional farmers and consumers, its finding of no significant environmental impact was unconvincing to the court. In August 2010, the court issued an order prohibiting all future plantings of Roundup Ready sugar beets until APHIS remedies its NEPA violations.14
      As the battle over GE crops rages, the facts remain murky. Most of the controversy centers on impacts to organic agriculture. While genetic drift does occur, it is unclear whether, and to what extent, harm to the environment occurs. In fact, proponents of GE crops suggest that there can be an environmental benefit through less pesticide applications and less tillage. Economic impacts, however, can be severe if the fields of organic farmers are contaminated with the glyphosate-resistant gene and their access to organic markets thereby foreclosed. More information is clearly needed. Ideally these information needs would be met, at least in part, by APHIS’ forthcoming environmental reviews.
Endnotes
1.  Monsanto Co. v. Geertson Seed Farms, 130 S.Ct. 2743 (2010).
2.  William Neuman and Andrew Pollack, Farmers Cope with Roundup-Resistant Weeds, The New York Times, May 3, 2010.
3.   See, 7 C.F.R. §§ 340.1, 304.6.
4.  Monsanto, 130 S. Ct. at 2750.
5.  Matt Jenkins, Brave New Hay, High Country News, June 11, 2007.
6. Monsanto, 130 S. Ct. at 2751.
7.  Researchers have identified 10 Roundup-resistant weeds infecting 22 states. Neuman and Pollack, supra note 1.
8.  7 C.F.R. § 340.6(d)(3)(i) (emphasis added).
9.  Monsanto, 130 S. Ct. at 2757 (emphasis in original).
10. Id. at 2759.
11.See, i.e., Andrew Pollock, Justices Back Monsanto on Biotech Seed Planting, New York Times, June 21, 2010; Brent Kendall, High Court Sides with Monsanto in Alfalfa Case, Wall Street Journal, June 22, 2010.
12.Center for Food Safety v. Vilsack, Orders regarding Cross-motions for Summary Judgment, Case no. C 08-00484 JSW (Sept. 9, 2009).
13. Id. at *13.
14.Center for Food Safety v. Vilsack, Order regarding Remedies, Case no. C 08-00484 JSW (Aug. 13, 2010).