Judge Concerned that Alfalfa May Be a Little Rascal - and other Legal News

In recent years, federal district courts have found environmental statute violations in the way that the Animal and Plant Health Inspection Service (APHIS) regulates genetically engineered (GE) plants. A federal judge recently fashioned an unusual remedy for a violation: he placed a permanent injunction on an APHIS-approved cultivation of a GE crop. The case began in June 2005 when APHIS issued a Finding of No Significant Impact and approved Monsanto Company’s petition requesting nonregulated status for GE Roundup Ready® alfalfa. Opponents to deregulation stressed the possibility that bee pollination could transfer the GE alfalfa’s glyphosate tolerance gene to conventional alfalfa. Nevertheless, APHIS concluded that growers of conventional or organically-grown crops could emplace reasonable quality control measures to ensure that their crops did not include any GE alfalfa. Alfalfa growers, the Sierra Club, and other farmer and consumer associations filed a lawsuit, alleging that APHIS’ deregulation of GE alfalfa violated the National Environmental Policy Act. Cultivation of GE alfalfa would result in spread of the glyphosate tolerance gene to natural alfalfa, they contended, an event that would create a significant environmental impact. Charles R. Breyer, a judge in the US District Court for the Northern District of California, agreed with the plaintiffs. APHIS had effectively concluded, according to the judge, that any environmental impact would be insignificant, because organic and conventional farmers bore the responsibility to prevent genetic contamination. Despite APHIS’ conclusion, Judge Breyer could find no evidence that the agency had investigated if farmers could actually protect their crops from genetic contamination. On February 13, 2007, the judge held that APHIS had failed to take a “hard look” at the potential environmental impacts of its deregulation decision, a step required by the National Environmental Policy Act. He granted plaintiffs’ motion for summary judgment on the claim that APHIS must prepare an Environmental Impact Statement (EIS). On March 2, the plaintiffs filed a request for a permanent injunction to block APHIS’ deregulation of the GE alfalfa until the agency preformed its environmental review. The judge granted plaintiffs’ request on May 3. First, the judge vacated APHIS’ June 2005 determination of nonregulated status for the GE alfalfa. Then, the judge instructed the agency to prepare an EIS and reconsider the deregulation petition. APHIS must complete its EIS and again decide to deregulate before farmers can plant Roundup Ready alfalfa. Meanwhile, farmers had planted 220,000 acres of GE alfalfa before the ban. Judge Breyer decided that the alfalfa may be grown, harvested, and sold under certain conditions. For instance, farmers must apply APHIS-approved procedures to clean farm equipment used in GE alfalfa production to minimize the risk of the spread of GE alfalfa seed and hay. Harvested GE alfalfa must be stored in designated and clearly labeled containers. And in the most controversial condition, APHIS must gather information about the locations of GE alfalfa seed production sites and GE alfalfa hay fields and reveal this information to the public. This would enable producers of conventional or organically-grown alfalfa to decide if they should test their crops for contamination. APHIS has requested that the judge amend the conditions, including the widespread disclosure of specific locations of GE alfalfa fields. Previous disclosures of GE crop locations, the agency noted, triggered vandalism and intimidation of farmers. USDA spokeswoman Rachel Iadicicco told the Associated Press that the court-imposed environmental study could take up to two years to complete. Monsanto Company announced that the company is reviewing its options, including the possibility of an appeal.