AgDM Whole Farm Legal and Taxes, Significant Opinions from Other Courts, Updated May 2007

Two federal courts rule that USDA improperly advanced genetically modified crops

Roger McEowenby Roger McEowen, Leonard Dolezal Professor in Agricultural Law, (515) 294-4076,

The introduction of biotech crops to the marketplace has been fraught with controversy. Some of the problem is the result of the USDA pushing the introduction of biotech crops too quickly without adequate field testing and regulation. Recently, two different federal courts have rendered opinions in cases involving the introduction of biotech crops to the market. The first case involved bentgrass that had been genetically modified to resist Monsanto’s Roundup herbicide in a collaboration between The Scotts Co. and Monsanto. Bentgrass is commonly used on lawns, athletic fields and golf courses. The plaintiffs claimed that USDA had violated federal law by permitting field tests of the genetically modified bentgrass to be conducted across the U.S. without adequately determining whether the grass was a plant pest pursuant to the Plant Protection Act (PPA) or preparing an environmental impact statement or environmental assessment under the National Environmental Policy Act (NEPA). Based on evidence that the bentgrass had crossbred with wild grasses adjacent to the test fields, the court held that the plaintiffs had standing to bring the lawsuit, determined that USDA had acted arbitrarily in denying the plaintiff’s claim that the bentgrass should be listed as a noxious weed under the PPA, and found that USDA had violated NEPA by failing to consider whether field trials were exempt from the need for an environmental assessment or environmental impact statement.

In the second case, the court criticized the USDA as being “cavalier” and held that USDA violated federal law by failing to assess the possible environmental impacts before approving genetically engineered alfalfa developed by Monsanto. Roundup Ready alfalfa allows growers to use Monsanto’s Roundup herbicide to kill competing weeds without damaging the alfalfa. The plaintiffs claimed that the biotech alfalfa could create super weeds resistant to herbicide, hurt production of organic dairy and beef products, and could cause farmers to lose export business due to risks of contamination to natural and organic alfalfa. The suit also alleged that contamination of conventionally grown alfalfa could force farmers to pay for Monsanto’s patented gene technology whether they wanted it or not. The parties were ordered to propose remedies to the court by February 26. It is anticipated that the plaintiffs will seek an injunction against future seed sales or plantings of biotech alfalfa. InternationalCenter for Technology Assessment, et al. v. Johanns, No. 03-00020 (HHK), 2007 U.S. Dist. LEXIS 7773 (D. D.C. Feb. 5, 2007); Geertson Seed Farms, et al. v. Johanns, No. C06-01075 CRB (N.D. Cal.Feb. 13, 2007).

On March 12, 2007, the court issued a preliminary injunction that temporarily halts the planting of GMO alfalfa in the U.S. The injunction allows continued harvest, use and sale of Roundup Ready Alfalfa, but places limits on the purchase and planting of seed until further hearings are held.  Farmers who already have purchased Monsanto’s Roundup Ready alfalfa must plant it by March 30.  No new sales of the seed are allowed after March 12. The order also specifies that farmers intending to plant alfalfa after March 30, 2007, must plant non-genetically engineered alfalfa. Approximately 200,000 acres of genetically modified alfalfa already have been planted in across the U.S., and the court’s order does not require those crops to be removed. The court will hear oral arguments in the case concerning the nature of any permanent injunctive relief on April 27.

On May 3, 2007, the court made permanent the temporary injunction that had been previously entered in the case on March 12.  The court’s order is the first judicial ban on genetically modified crops since the first variety, the Flavr Savr tomato, was approved in 1994.  The ban is nationwide, and will remain in place at least until USDA complies with the court’s order to conduct a detailed study of the crop’s effect on the environment and other alfalfa varieties.  An estimated 220,000 acres of Roundup Ready alfalfa have been planted in the U.S. (out of approximately 21 million acres in alfalfa production), and the ban does not stop the harvesting of those crops which approximately 76 farmers are growing under contract to be sold to Forage Genetics for seed.  The court also ordered the segregation of the GMO alfalfa immediately after harvest, and that gear used in production of the GMO alfalfa be cleaned properly after use so as to minimize the risk of contamination of conventional and organic alfalfa crops.  In addition, the court ordered the disclosure of field locations where the crop was planted. In deciding to make the injunction permanent, the court specifically cited the potential for genetic contamination, rejecting Monsanto’s claim that there was a low risk of contamination. The court also rejected Monsanto’s contention that allowing the expansion of GMO alfalfa would result in fewer toxic chemicals to be utilized on alfalfa crops. Instead, the court pointed out that all organic and most conventional forage alfalfa is presently grown without the use of any herbicides. The court also noted that the harm to farmers that do not want to grow genetically modified alfalfa (in terms of lost sales) and consumers that don’t want to buy it outweighed the economic harm to Monsanto and Forage Genetics International (the firm to which Monsanto licenses the technology and which produces and markets the seeds), as well as farmers that might want to grow GMO alfalfa. Geertson Farms, Inc., et al. v. Johanns, et al., No C 06-01075 CRB (N.D. Cal.May 3, 2007).

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