District court affirms USDA’s regulatory process with Roundup Ready alfalfaWritten by Saige
A lawsuit filed against USDA in March 2011 by a group of plaintiffs led by the Washington, D.C.-based Center for Food Safety, claimed USDA violated the National Environmental Policy Act (NEPA), the Plant Protection Act, the Endangered Species Act and the Administrative Procedure Act, when it opted to deregulate the product.
The plaintiffs include farmers who were concerned the genetically engineered alfalfa could cross-pollinate their crops, foster the development of glyphosate-resistant weeds and threaten organic growers through transgenic contamination.
The case may not have run its course through the court system, as court documents say the case will be appealed to the Ninth Circuit Court of Appeals. An attorney told DTN the case ultimately could be decided by the nation’s highest court.
Drew L. Kershen, Earl Sneed Centennial Professor of Law at the University of Oklahoma, says if the Ninth Circuit reverses the opinion it is possible USDA and the interveners in the case – Monsanto Corp. and Forage Genetics – will seek judicial review by the U.S. Supreme Court. In 2007 the U.S. Supreme Court reversed a nation-wide ban on planting Roundup Ready alfalfa.
“The Supreme Court is interested in this issue about the relationship between federal courts and administrative agencies about agricultural biotechnology crop approvals,” says Kershen. “I reiterate again that whether the Supreme Court would want to accept a judicial appeal in this matter for a second time is completely unpredictable.”
In his latest ruling Judge Conti found the Animal and Plant Health Inspection Service (APHIS) did what a federal 2007 decision required and that federal courts are required to respect that APHIS decision.
Tom Helscher, director of corporate affairs for Monsanto, said in a written statement that the court’s decision proves the federal process works.
“The court’s affirmation of USDA’s regulatory process and comprehensive environmental impact statement is welcome news for U.S. alfalfa growers,” he said.
“The record supporting Roundup Ready alfalfa is sound. The ruling affirms the coordinated framework created more than 25 years ago and that it functions effectively to evaluate new biotech crops, relying on three expert agencies, USDA, EPA and FDA, to perform their well-defined statutory roles.
“After several years of litigation, this decision marks an important milestone in establishing that American farmers can count on biotech crop approvals issued by the experts in the several federal agencies responsible for regulation of biotechnology.”
USDA legal ground
Kershen says the latest ruling puts USDA on better legal ground for similar challenges including Roundup Ready sugar beets.
“Judge Conti thus has ruled that Roundup Ready alfalfa is a fully deregulated crop, meaning that seed sellers can sell the seed, growers can grow the crop, and buyers can buy the crop without further federal oversight,” says Kershen. “Roundup Ready alfalfa is now just a crop – a variety of alfalfa that farmers can choose to grow and use. Producers can simply plant, grow, sell this alfalfa like any other alfalfa variety.”
He said the decision sets a “significant precedent” for future legal challenges to the use of genetically engineered crops, in particular those decisions that come after APHIS prepares environmental impact statements.
DTN’s attempt to reach the Center for Food Safety for comment was unsuccessful.
APHIS prepared an environmental assessment for glyphosate-tolerant alfalfa, declared it safe and deregulated the crop in 2005.
The crop was grown for two years, but a lawsuit brought by environmental groups claimed that the genetically engineered alfalfa could contaminate conventional and organic alfalfa.
The lawsuit charged that APHIS had not followed the National Environmental Policy Act when it prepared an environmental assessment rather than a full environmental impact statement, or EIS.
In 2007, the U.S. District Court for the Northern District of California ruled that APHIS would have to complete a full EIS. In December 2010, USDA announced that it had completed the EIS and would consider three options on Roundup Ready alfalfa.
That included the continued regulation, full deregulation or a partial deregulation that would require isolation distances from other crops of up to five miles and other geographic restrictions, and would establish measures to make sure that Roundup Ready alfalfa did not contaminate other alfalfa crops.