Photo: Daryl Mitchell (flickr)
The U.S. Supreme Court ruled 7-1 in favor of Monsanto on Monday in the first ever ruling on genetically modified crops. So why are both sides claiming victory?
The answer lies partially in the appeal itself. In the case Monsanto Co v. Geerston Seed Farms, the petitioners, Monsanto and the government, didn’t argue with the ruling that Roundup Ready Alfalfa, or RRA, violated rules set forth by the National Environmental Policy Act, or NEPA.
In other words, by allowing RRA to be used without a complete Environmental Impact Statement, or EIS, APHIS, the Animal and Plant Health Inspection Services’ decision to allow the seed to be deregulated was illegal.
Mystified? Here’s Some Background Information:
Alfalfa is the fourth largest crop in the United States, worth nine billion a year according to a USDA study. Monsanto, a major seed supplier, genetically modified alfalfa seed that were intolerant to the popular weed killer, Roundup. By being able to directly spray alfalfa plants with Roundup and not worry about harming them, it would save farmers time and money.
Sounds great in theory, but in the past there have been issues with Roundup-resistant seeds and growing “super weeds.” These weeds become resistant to Roundup as well, making them harder to get rid of and creating a huge problem for the farmers who harvest the plants affected by them.
More (from Earth Eats): Some Weeds Are Now “Roundup Ready” Too
The Animal and Plant Health Inspection Service (APHIS) considers genetically modified plants to be “plant pests,” and therefore subject to regulation.
Regulation means before any genetically modified seed is released, federal agencies must “to the fullest extent possible” prepare a detailed environmental impact statement (EIS). However if the agency wishes, it can rely on a shorter study, the environmental assessment, or EA, if it’s determined there is little chance of a significant environmental impact.
The case came about after Monsanto’s new genetically modified alfafa seeds were released for use without an EIS.
APHIS prepared a draft EA and released it to the public for comment, then went ahead with the deregulation of the seeds, claiming the EA was sufficient enough to show the seeds wouldn’t negatively affect the environment.
Concerns About Cross-pollination
There was a nearly two year span where Monsanto’s new seeds were deregulated unconditionally, meaning they were available to plant and farm. Geerston Seed Farms and others appealed the decision, stating they would be harmed by the lack of environmental evidence provided on the roundup ready alfafa (RRA) seeds.
Both conventional and organic farmers were concerned about cross-pollination of genetically modified seeds and “pure” seeds. Stating that bees pollinate alfalfa and can travel large distances, there was a significant risk of genetically modified seeds mingling with plants that aren’t genetically modified.
Farmers were concerned about their livelihood—the cost of pure seeds goes up and so does the expense to ensure their crops are not tainted.
Ninth District Court Ruling
Upon appeal, the Ninth District courts decided that the Animal and Plant Health Inspection Service (APHIS ) violated the rules set forth by the National Environmental Policy Act (NEPA) when deregulating seeds without an EIS, and sought an injunction on APHIS releasing the seeds pending an EIS as well as a nationwide injunction on Monsanto’s roundup ready alfafa (RRA) seeds.
When Monsanto and the government appealed, they only appealed the injunctions, not that APHIS had violated NEPA.
The Supreme Court, in their ruling this week, essentially ruled that the District Court overstepped their bounds in releasing sweeping injunctions, but didn’t touch the NEPA violation since Monsanto et al. didn’t argue against it.
The Associated Press quotes Justice Alito, author of the opinion, “We agree that the District Court’s injunction against planting went too far.”
A Win For Monsanto? Sort of…
In an effort to report the ruling, both the Associated Press and New York Times reported the story as a victory for Monsanto—which, while technically true, isn’t the full story.
The case doesn’t actually lift the illegality of the actions APHIS took with the roundup ready alfafa (RRA) seeds. It only lifts the injunctions issued by the lower courts against “partially deregulating” the RRA seed and the nationwide ban on them.
What that means is the USDA still has to comply with the earlier ruling that stated that deregulating the seeds without an environmental impact statement (EIS) violated the law.
The New York Times writes, “Because the Supreme Court left in place the lower court’s rejection of approving the crop, the Agriculture Department must either fully or partly approve it before growing can resume.”
A Precedent Setting Decision
What initially reads as a clear victory for Monsanto actually becomes a case that may help set precedent for environmental cases down the road.
Grist.org, an online environmental news and community site, describes the case in a more nuanced light.
“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 the Roundup Ready alfalfa,” the article reads.
Grist points out the Supreme Court recognized “environmental harm” can include economic factors, such as loss of revenue due to genetic contamination. It also accepted that “gene flow” can be a threat to plants.
Basically, lifting the injunctions only allows for the opportunity to “partially deregulate” RRA. An EIS is still in the works, with the tentative release date being spring 2011.
What The Case DID Decide
Justice Alito argues in his opinion that the District Courts “barred the agency from pursuing any deregulation,” no matter how small the environmental risk might be. He described how the earlier judgment was inconsistent, allowing for already planted seeds to be farmed and harvested.
Alito argued, in the end, that the District Courts didn’t have a right to issue such a sweeping injunction in light of the inconsistent ruling and inability to allow a partial deregulation by the Animal and Plant Health Inspection Service (APHIS).
Although ruling was in favor of Monsanto, the case really speaks to how the District Courts had no right to issue such broad and sweeping injunctions.
Alito agreed both parties had a right to argue damages because of the actions of APHIS and/or the District Courts.
Because of the lack of a challenge from Monsanto or the government, Monsanto’s roundup ready alfafa seeds aren’t technically legal to sell just yet (pending the release of the environmental impact statement in spring 2011).
In the meantime, however, Monsanto can petition to have the seeds “partially deregulated” before the EIS is official.
Read More: Complete Text of the Supreme Court Decision (Find Law)