Tuesday, December 28, 2010

Genetically Modified Food For Legal Thought

The United States Department of Agriculture ("USDA") justifies the Plant Protection Act ("PPA")(7 U.S.C. §7701 et seq.) as "necessary because of the major impact plant pests currently have and could have on the agriculture, environment, economy, and commerce of the United States."  The PPA empowers the Animal and Plant Health Inspection Service ("APHIS") "to prohibit or restrict the importation, exportation, and the interstate movement of plants, plant products, certain biological control organisms, noxious weeds and plant pests."  Under subsections of 7 CFR §440, APHIS presumes certain genetically modified ("GM") crops to constitute plant pests.  However, the owner of a GM crop may petition APHIS to have that GM crop deregulated upon a showing that it poses no plant pest risk.

In 2004, Monsanto petitioned APHIS to have two types its GM Roundup Ready Alfalfa ("RRA") granted nonregulated status.  After drafting an environmental assessment of the environmental impact of granting this petition, and soliciting public comments on the issue, APHIS granted Monsanto a "Finding of No Significant Impact," and the RRAs were deregulated.  Several seed farms and environmental groups filed suit in the federal district court for the Northern District of California, winning a preliminary (and, later, a permanent) injunction largely banning any planting of the RRAs until APHIS complied with NEPA (the "National Environmental Policy Act", 42 U.S.C. §4321 et seq.) by preparing an environmental impact statement ("EIS") on RRA deregulation.  On appeal, the Ninth Circuit Court of Appeals affirmed, after finding that the district court below had not abused its discretion.  In Monsanto v. Geertson Seed Farms (decided on June 21, 2010), an almost unanimous U.S. Supreme Court reversed the judgment of the Ninth Circuit, finding that "the District Court had abused its discretion in enjoining APHIS from effecting a partial deregulation and in prohibiting the possibility of planting [RRAs] in accordance with the terms of such a deregulation," and remanded the case.

On December, 2010, APHIS released its final EIS, which found the RRAs substantially equivalent to non-GM alfalfas.  Normally, such a finding of substantial equivalence would warrant deregulation.  However, the USDA expressed its preference that deregulation of the RRAs be accompanied by safeguards to prevent genes from GM alfalfa from contaminating neighboring organic crops.  The issue of colliding GM and non-GM crops has already reached the courts on several occasions, most notably in In re Starlink Corn Products Liability Litigation (N.D. Illinois 2002) and Monsanto v. Schmeiser (Supreme Court of Canada 2004).  Like the English Railway Fires Acts, which were intended to provide modest compensation to owners (often farmers) whose lands were damaged by sparks from steam engines, while simultaneously preventing tort liability from discouraging the perceived economic progress offered by railways, the PPA deregulation pathway could become a method of encouraging the expansion of GM crops.  The decision by APHIS to deregulate, but only with potentially onerous conditions, has even raised the ire of, among others, the Wall Street Journal, which led its December 27, 2010, editorial page with an indictment of USDA's decision to rely on non-scientific factors alongside scientific ones.  The editorial warns that "[i]f nonscience criteria are introduced as considerations for allowing the sale of biotech crops, the effect would be disastrous for the USDA's regulatory reputation."

If GM crops continue to be rapidly adopted around the world, legal issues involving colliding crops are sure to become more common.  Managing the legal consequences of such collisions awaits solutions.