Lawsuit claimed harm to endangered species

May 24, 2013

Genetically-engineered alfalfa can once again be grown in U.S. fields, and could be the dominant alfalfa type in some geographies, following a court decision handed down by the U.S. 9th Circuit Court of Appeals USDA took the right action in deregulating Monsanto’s Roundup Ready alfalfa, a three-judge panel ruled Friday, May 17 in a lawsuit that had been filed by environmental and ag groups. The groups stated that deregulation would lead to more widespread weed problems and harm endangered species.

The court found the Plant Protection Act “does not regulate the type of harms that the plaintiffs complain of, and therefore the Animal Plant and Health Inspection Service (APHIS) correctly concluded that Roundup Ready Alfalfa was not a ‘plant pest’ under the act,” according to the ruling.

Once USDA concluded Roundup Ready alfalfa was not a plant pest, the court ruled the agency no longer “had jurisdiction to continue regulating the plant, and this obviated the need for the agency to consult with the Fish and Wildlife Service under the Endangered Species Act and to consider alternatives to unconditional deregulation under the National Environmental Policy Act.”

Monsanto declined to provide information on how many acres of Roundup Ready alfalfa are currently planted. A spokesperson for Monsanto did email DTN regarding a survey of U.S. alfalfa growers conducted by a trade magazine that said approximately 25 percent of those growers intended to utilize the RR alfalfa technology. Actual trait penetration appears to be slightly higher than 25 percent on a national basis, with localized trait penetration of between 10 percent and 80 percent based on geography.

In addition, the court said that APHIS did not violate the Plant Protection Act by not considering whether Roundup Ready Alfalfa was a noxious weed.

The Center for Food Safety, Sierra Club and a number of agriculture groups asked the court to stop the release of Roundup Ready alfalfa because of potential harm to organic crops from transgenic contamination. For example, the plaintiffs in the case argued that such contamination could force ranchers who raise organic meat to spend money testing alfalfa they feed their animals to ensure none of it is genetically modified.

If ranchers are unable to show their animals are fed with non-modified alfalfa, they would be unable to market their meat as organic.

In addition, the plaintiffs argued that deregulation of the Roundup Ready alfalfa would lead to glyphosate-resistant weeds. They contended that farmers would then apply even more glyphosate and a mix of herbicides to combat weeds, potentially threatening endangered species.

Safety unquestioned

In a statement released Friday, May 17, Monsanto said the decision confirms that “the USDA properly regulates biotech seed products, and protects farmers’ rights to choose how they produce their crops. No court has ever questioned the safety of ag biotech crops in course of hearing lawsuits questioning USDA’s regulation of ag biotech.”

Kyle McClain, Monsanto’s chief litigation counsel, said in a statement that the ruling provides alfalfa growers with “legal certainty” and is “important reaffirmation of USDA’s process for regulating biotechnology improved crops.”

Most corn, soybeans, cotton and sugar beets grown in the U.S. are genetically modified, according to US- DA.

“With the court’s ruling, growers can be confident of their right to make their own decisions about the crops they want to plant and harvest,” Monsanto said in a statement.

Andrew Kimbrell, executive director of Center for Food Safety, said in a statement that the ruling runs contrary to other rulings on similar cases.

“This is an irresponsible decision,” he said.

“The court acknowledged the many stark environmental and economic impacts of these crops, and yet bends over backwards in allowing USDA to avoid addressing those concerns in its regulatory process. This decision is contrary to the Supreme Courts’ decision on GE alfalfa and prior decisions by numerous other courts,” Kimbrell said.

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 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. — Todd Neeley, DTN