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 biggest 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 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 prematurely 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. 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 decision 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.
[Update:] The USDA office that oversees biotech crops, the Animal and Plant Health Inspection Service (APHIS), just released a brief statement via email in response to the Supreme Court's ruling. In it, the agency leaves the door open to some sort of preliminary approval for the alfalfa seed, without indicating its intention one way or the other: "APHIS is carefully reviewing the Supreme Court ruling before making decisions about its next regulatory actions related to the deregulation of Roundup Ready alfalfa." It also announced its intention to complete the full environmental impact statement "in time for the spring planting of alfalfa crops in 2011." That start date presumes they get through the process without any more lawsuits or injunctions -- not a safe bet, at all.
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 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.