Supreme Court's ruling on Monsanto's GM alfalfa

Monday, 21 June 2010 22:15

1.Supreme Court Ruling in Monsanto Case is Victory for Center for Food Safety, Farmers
2.Supreme Court's Ruling on Monsanto's GM Alfalfa: Who Won?

NOTE: Monsanto and much of the US's mainstream media are declaring today's Surpreme
Court verdict a victory for Monsanto, with headlines declaring the ban on GM alfalfa has been
lifted - not so fast say these commentators.
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1.Supreme Court Ruling in Monsanto Case is Victory for Center for Food Safety, Farmers
Center for Food Safety, June 21 2010
http://truefoodnow.org/2010/06/21/supreme-court-ruling-in-monsanto-case-is-victory-for-center-f
or-food-safety-farmers/

*High Court Delivers Ruling that Leaves Ban on Planting of Roundup Ready Alfalfa in Place in
First-Ever Case on a Genetically-Engineered Crop

[image caption: CFS staff attorney George Kimbrell speaks to members of the press after
Tuesday's Supreme Court hearing]

The Center for Food Safety today celebrated the United States Supreme Court’s decision in
Monsanto v. Geerston Farms, the first genetically modified crop case ever brought before the
Supreme Court.  Although the High Court decision reverses parts of the lower courts’ rulings,
the judgment holds that a vacatur bars the planting of Monsanto’s Roundup Ready Alfalfa until
and unless future deregulation occurs.  It is a victory for the Center for Food Safety and the
Farmers and Consumers it represents.

“The Justices’ decision today means that the selling and planting of Roundup Ready Alfalfa is
illegal.  The ban on the crop will remain in place until a full and adequate EIS is prepared by
USDA and they officially deregulate the crop.  This is a year or more away according to the
agency, and even then, a deregulation move may be subject to further litigation if the agency’s
analysis is not adequate,” said Andrew Kimbrell, Executive Director of the Center for Food
Safety. “In sum, it’s a significant victory in our ongoing fight to protect farmer and consumer
choice, the environment and the organic industry.”

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In the majority opinion written by Justice Samuel Alito, the Court held: “In sum…the vacatur of
APHIS’s deregulation decision means that virtually no RRA (Roundup Ready Alfalfa) can be
grown or sold until such time as a new deregulation decision is in place, and we also know that
any party aggrieved by a hypothetical future deregulation decision will have ample opportunity
to challenge it, and to seek appropriate preliminary relief, if and when such a decision is made.”
(Opinion at p. 22).

The Court also held that:

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Supreme Court's ruling on Monsanto's GM alfalfa
Monday, 21 June 2010 22:15

    * Any further attempt to commercialize RRA even in part may require an EIS subject to legal
challenge.
    * The Court further recognized that the threat of transgenic contamination is harmful and
onerous to organic and conventional farmers and that the injury allows them to challenge future
biotech crop commercializations in court.

USDA indicated at the Supreme Court argument that full deregulation is about a year away and
that they will not pursue a partial deregulation in the interim.  Any new attempt at deregulation in
full or part will be subject to legal challenge.

“The bottom line is that the Supreme Court set aside the injunction because the vacating of the
commercialization decision already gave us all the relief we needed, by forbidding RRA planting
until a new decision is made by the agency.  And at such time, farmers and consumers still
have the right to challenge the adequacy of that process.” said George Kimbrell, senior staff
attorney for CFS.    “The Court’s decision affirmed that the threat of genetic contamination of
natural plants posed by biotech crops is an issue of significant environmental concern now and
in the future.”

In this case, CFS faced off against powerful opposing entities, including the Department of
Agriculture and the agricultural biotech giant, Monsanto Corporation. The Center and the other
respondents were supported by a broad array of diverse interests, marshalling no less than
seven amicus briefs in support.  The amici included three states’ attorneys general, leading
scientific experts, legal scholars, former government officials, farmers, exporters, environmental
groups, food companies and organic industry trade groups.  The Organic Trade association and
companies like Stonyfield Farms, Cliff Bar and Eden Foods voiced united concern over the
threat a ruling for Monsanto would pose to the organic food businesses, the fastest growing
sector in the American food industry.   Attorneys general from California, Oregon and
Massachusetts filed a brief on behalf of their citizens emphasizing “the States’ interests in
protecting the environment, their natural resources and their
citizens’ rights to be informed about the environmental impacts of federal actions.” A full list of
the more than sixty organizations, companies and individuals who filed briefs in support of CFS
and opposed to Monsanto can be viewed at
http://truefoodnow.org/publications/supreme-court-briefs/.

Monsanto was supported by a bloc of powerful corporate interests and industry groups,
including the American Farm Bureau, the Biotechnology Industry Organization, the American
Petroleum Institute, the U.S. Chamber of Commerce, and CropLife America.

The environmental, health, cultural, and economic impacts of the genetically-engineered alfalfa
seed, which is designed to be immune to Monsanto’s flagship herbicide Roundup, and the
USDA’s plan to commercialize it, was at the heart of this dispute since 2006, when CFS filed a
lawsuit against the USDA on behalf of a coalition of non-profits and farmers who wanted to
retain the choice to grow non-GE alfalfa.    Central to the issue is unwanted transgenetic drift:
GE alfalfa can spread uncontrollably by way of bees that can cross-pollinate plants many miles
away, contaminating both conventional and organic alfalfa with foreign DNA, patented by
Monsanto.

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“We brought this case to court because I and other conventional farmers will no doubt suffer
irreversible economic harm if the planting of GE alfalfa is allowed,” said plaintiff Phil Geerston. 
“It was simply a question of our survival, and though we did not win on all points of the law, we
are grateful that the practical result of today’s ruling is that Monsanto cannot take away our
rights and Roundup Ready alfalfa cannot threaten our livelihoods.”

Alfalfa is the fourth most widely grown crop in the U.S., and a key source of dairy forage.
Organic and conventional farmers faced the loss of their businesses due to widespread
contamination from Monsanto’s patented GE alfalfa, and the foreseeable contamination of feral
or wild alfalfa would ensure an ongoing and permanent source of transgenic pollution in wild
places akin to that of invasive species.  The New York Times (link) recently covered the
epidemic of super-weeds Monsanto’s Roundup Ready crops are causing across the country.

Further background information on the history of this case and scientific studies are available at
http://truefoodnow.org/publications/supreme-court-briefs/. The Supreme Court decision can be
viewed here: http://www.supremecourt.gov/opinions/09pdf/09-475.pdf

 #  #  #

 The Center for Food Safety is national, non-profit, membership organization, founded in 1997,
that works to protect human health and the environment by curbing the use of harmful food
production technologies and by promoting organic and other forms of sustainable agriculture.
On the web at: http://www.centerforfoodsafety.org
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2.Supreme Court's Ruling on Monsanto’s GE Alfalfa: Who Won?
Tom Laskawy
Grist, June 21st 2010
http://civileats.com/2010/06/21/supreme-court%E2%80%99s-ruling-on-monsanto%E2%80%99s
-ge-alfalfa-who-won/#more-8478  

The sustainable agriculture world is abuzz today with news of the Supreme Court’s ruling
regarding an earlier lawsuit, brought by alfalfa farmers, that sought to stop any planting of
Monsanto’s genetically engineered Roundup Ready alfalfa seed. While the press coverage
heralds the ruling as a decisive victory for Monsanto, a close reading shows that, in fact, it’s a
fairly significant win for opponents of biotech crops.

Hay dudes, not so fast

The background: As the fourth most-planted U.S. crop behind corn, soybeans, and wheat,
alfalfa is worth $9 billion a year — the dairy industry is the bigest consumer — with annual seed
sales valued at $63 million, according to a USDA study. Monsanto’s Roundup Ready alfalfa
seed has been genetically engineered to be tolerant of glyphosate, the active ingredient of
Monsanto’s herbicide Roundup.

Earlier this year, the U.S. District Court in San Francisco found that the USDA had illegally

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approved Roundup Ready alfalfa for planting — which the agency refers to as “deregulating” —
by allowing Monsanto to sell and farmers to plant the seeds without the USDA completing a
required full Environmental Impact Statement. (A preliminary one was under way.)

In response to a lawsuit filed by GMO-opposed alfalfa farmers along with the Center for Food
Safety on behalf of consumers, the District Court halted all planting of Roundup Ready alfalfa
until the USDA completes the EIS, which could take years. It also issued two injunctions: one
that prevented the USDA from performing a so-called “partial deregulation” of Roundup Ready
alfalfa, i.e. allowing restricted and otherwise limited planting, while it prepared the final
environmental statement; the other stopping farmers from planting any Roundup Ready alfalfa
starting with the 2010 crop year. (For a deeper look into the lead-up to the case, read Matt
Jenkins’ excellent 2007 feature “Brave New Hay” from High Country News.)

Today, in a 7-1 opinion written by Justice Samuel Alito, the Supreme Court reversed both
District Court injunctions, saying that the Court had overreached itself procedurally in halting the
plantings. (Both Justices Steven Breyer and Clarence Thomas had conflicts of interest in the
case — Breyer’s brother was the District Court judge on the case, while Thomas was corporate
counsel for Monsanto earlier in his career, but only Breyer saw fit to recuse himself.)

Despite the news reports claiming victory for Monsanto, the Supreme Court did not overturn the
central tenet of the case: that the USDA illegally approved Roundup Ready alfalfa. The District
Court, in effect, made it once again illegal to plant Roundup Ready alfalfa — and the Supreme
Court endorsed that ruling.

In short, it remains illegal to plant RoundUp Ready alfalfa. While the Justices did declare that
the USDA, if it wants to, has the right to give the seed a preliminary approval (i.e. for limited,
restricted planting), the Supreme Court ruling does not by itself give Roundup Ready alfalfa the
green light.

And it’s important to note that the USDA has not yet formally announced any intention to
re-authorize the restricted plantings, which would come in the form of a rule for “partial
deregulation” of Roundup Ready alfalfa. In fact, the agency and Monsanto hed preciously
submitted such a plan to the District Court in hopes that it would be incorporated into the final
ruling, and instead, they received an injunction.

To some, that move appeared to be an attempt at an end run around the official rulemaking
process. It’s not clear if the USDA will move forward with anything other than the “final”
environmental review.

No mo’ gene flow?

More importantly, the Supreme Court has also now ruled for the very first time that
“environmental harm” includes economic effects such as reduced agricultural yield or loss of
market due to genetic contamination, as well as the concept of what biologists refer to as “gene
flow” (in practice, the idea that genetically engineered material may get into conventional plants
through cross-pollination). The Supreme Court now accepts that this phenomenon in and of

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itself is harmful and illegal under current environment protections.

“That’s a huge win for our side … That’s gigantic!” Michael Hansen, senior staff scientist of
Consumers Union, told me. Future lawsuits can now confidently use the gene-flow argument
against approval and use of genetically engineered crops.

Others share his glee. The Center for Food Safety called the ruling “a victory for the Center for
Food Safety and the farmers and consumers it represents.”

For its part, Monsanto is spinning the ruling positively. In a statement posted on its website, the
company said:

This is exceptionally good news received in time for the next planting season. Farmers have
been waiting to hear this for quite some time. We have Roundup Ready alfalfa seed ready to
deliver and await USDA guidance on its release. Our goal is to have everything in place for
growers to plant in fall 2010.

Well, from all appearances Monsanto has this flat wrong. Farmers can’t plant Roundup Ready
alfalfa just yet. And even if the USDA tries for that preliminary approval, the Supreme Court
made very clear that today’s ruling does not presume that any preliminary approval is (or isn’t)
legal.

Indeed, the legal issues at the heart of the ruling aren’t over the rights of corporations or the
science behind genetically engineered seed, but about the separation of powers between
co-equal branches of government. The Supreme Court today stopped a District Court from
telling a federal agency that it couldn’t make regulatory rules. For the judiciary to stop the
government from doing its job requires meeting a very rigorous set of standards. After the
Supreme Court decided to make this point the crux of its ruling, all the other issues fell by the
wayside. Another way of looking at it is that the supposed “overreach” by the District Court was
against the USDA, not Monsanto.

The Supreme Court has also made the point very clearly that outside groups have the ability to
file lawsuits in order to stop any poorly conceived or improperly executed rule that a federal
agency passes. And surprisingly enough, the Court — with its expansion of the definition of
“environmental harm” to include things like gene flow — just gave consumer groups a whole
new set of legal weapons to wield against the same companies currently crowing over the
implications of today’s events.

Tom Laskawy blogs on food and the environment at Grist.org and Beyond Green, where he
covers food policy, alternative energy, climate science, and politics.

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