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Supreme Court Rules on GMO Alfalfa

By Dan Flynn and Suzanna Schreck

Yesterday the Supreme Court released its first-ever decision on genetically modified crops, overturning a lower court's ban on Monsanto's herbicide-resistant, or "Roundup Ready" alfalfa.

In 2005, the U.S. Department of Agriculture's (USDA's) Animal and Plant Health Inspection Service (APHIS) deregulated Roundup Ready alfalfa--otherwise known as a Finding of No Significant Impact--the agency did not prepare an Environmental Impact Statement, which environmental groups maintain is a violation of federal law. The agency did not place any limits on the planting, harvesting, or sale of the seeds.

In response, Geertson Seed Farms, along with The Center for Food Safety and a group of conventional and organic farmers, filed suit in federal district court, specifically citing violations of the National Environmental Policy Act, the Endangered Species Act, and the Plant Protection Act. The court ruled in favor of Geertson, issuing a permanent injunction prohibiting the sale of Roundup Ready Alfalfa until APHIS prepared a full Environmental Impact Statement. The decision was upheld in an appeals court.

Monsanto filed cert with the Supreme Court, arguing that the permanent injunction was inappropriate because it presumed irreparable harm based on the government's failure to complete the impact statement, not on a full evidentiary hearing on whether irreparable harm was likely. 

Yesterday's 7-1 decision, with only Justice John Paul Stevens dissenting (Justice Stephen Breyer recused himself because his brother ruled on the lower court case), the high court ruled in favor of Monsanto in Monsanto Co. v. Geertson Seed Farms, agreeing that the nationwide injunction was too drastic.

While unlikely to speed up the planting of now-prohibited alfalfa, the decision gives the agency the ability to allow restricted or partial planting of the seeds while it continues to complete the Environmental Impact Statement, which the court agreed was indeed required under federal law.

Both sides claiming victory

Most major media outlets, as well as Monsanto, called the decision a win for the agricultural giant--and the future of genetically modified crops--but environmentalists, food activists, and the Center for Food Safety maintain the details of the decision could set a precedent for strictly regulating GMO crops. 

"This Supreme Court ruling is important for every American farmer, not just alfalfa growers," said David F. Snively, Monsanto's Senior Vice President and General Counsel. "All growers can rely on the expertise of USDA, and trust that future challenges to biotech approvals must now be based on scientific facts, not speculation."

The company's business lead for alfalfa, Steve Welker, called the decision "exceptionally good news."

"Farmers have been waiting to hear this for quite sometime," said Welker.

"Despite what Monsanto is claiming--and what many mainstream media outlets reported earlier this morning--today's ruling isn't even close to the victory they were hoping for," said the Center for Food Safety in a statement, which asserted the court had only ruled with Monsanto on two of the three issues it was asked to consider.

"The Center is victorious in this case in several other ways: most importantly, the High Court did not rule on several arguments presented by Monsanto about the application of federal environmental law," the group said yesterday. "In addition, the Court opinion supported the Center's argument that gene flow is a serious environmental and economic threat.  This means that genetic contamination from GMOs can still be considered harm under the law, both from an environmental and economic perspective, another huge victory for CFS."
 
"Reports in the mainstream media have been wildly misleading," said Dave Murphy, founder and director of Food Democracy Now!, a grassroots advocacy group that has sent thousands of letters and comments to the Administration and USDA in support of the ban. "This ruling is a serious defeat for Monsanto."

"Not only is it still illegal to sell or plant GMO alfalfa until the USDA issues guidance, but the Supreme Court also ruled that 'environmental harm' now includes genetic contamination, something that could undermine biotech crops in future court cases. The issue is still very much alive and now lands on Vilsack's desk at the USDA," said Murphy, in an email to Food Safety News. "Make no mistake about it, the future of organics is at stake."

GMO alfalfa in USDA hands

With the court's ruling that the federal district court overstepped its bounds, the fate of GMO alfalfa will depend heavily on the impact statement APHIS completes.

The agency issued a brief statement after the ruling yesterday: "APHIS is carefully reviewing the Supreme Court ruling before making decisions about its next regulatory actions related to the deregulation of Roundup Ready alfalfa." The agency also reiterated its intention to complete the impact statement in time for spring planting of alfalfa in 2011.

As Tom Laskawy, of Grist, noted yesterday, "That start date presumes they get through the process without any more lawsuits or injunctions -- not a safe bet, at all."

The Monsanto co. v. Geertson Seed Farms decision is available here.

Full post as published by Food Safety News on June 22, 2010 (boomark / email).