As soon as the topic of coexistence came up. Ronnie Cummins of the Organic Consumers Association fired off a shot, with USDA Recommends “Coexistence” with Monsanto? We say Hell No!

The Agriculture Department is dutifully drafting a comprehensive “coexistence policy” that supposedly will diffuse tensions between conventional (chemical but non-GMO), biotech, and organic farmers. Earlier this week industry and Administration officials met in Washington, D.C. to talk about coexistence. Even though the Organic Consumers Association tried to get into the meeting, we were told we weren’t welcome. The powers that be claim that the OCA doesn’t meet their criteria of being “stakeholders.” The unifying theme in these closed-door meetings is apparently that Monsanto and the other biotech companies will set aside a “compensation” fund to reimburse organic farmers whose crops or fields get contaminated. That way we’ll all be happy. Monsanto, Bayer, Syngenta, Dow, and Dupont will continue planting their hazardous crops and force-feeding animals and consumers with GMOs. Organic farmers and companies willing to cooperate will get a little compensation or “hush money.” But of course our response to Monsanto and the USDA’s plan, as you might have guessed, is hell no!

There can be no such thing as “coexistence” with a reckless and monopolistic industry that harms human health, destroys biodiversity, damages the environment, tortures and poisons animals, destabilizes the climate, and economically devastates the world’s 1.5 billion seed-saving small farmers.  Enough talk of coexistence.

It is no small wonder to me why Ronnie was not invited. Even so, he gets the whole thing wrong about “hush money.” The USDA was not proposing a cross-pollination compensation fund, actually, the Organic Seed Alliance was, along with several other organizations.

The minutes of the USDA meeting in question are available online, and there is some good discussion there, worthy of its own post. Matthew Dillon from the OSA was on the phone talking about the hush money compensation fund idea, and Bill Freese was well, not talking about coexistence at all but instead weed resistance to glyphosate. Mark McCaslin from Forage Genetics was talking about what they’ve done to foster coexistence in the 4 years they’ve been waiting for the USDA’s shiny new EIS, and Doug Goehring from the North Dakota Department of Agriculture made the radical suggestion that if the proverbial “bull” gets out of its pen to tear up your neighbor, that “Maybe you’ve got to establish two fences on both sides.” (A much more workable situation with pollen flow, actually – it’s called incompatibility genes.) The USDA also explained the three deregulation options and how it might work to place geographic restrictions on alfalfa fields.

In the short time between this December meeting and the close of the comment period, while you heard some talk about End Times for Organic agriculture if GE alfalfa was approved, Whole Foods surprised me when it announced on its company blog that it supported the 3rd option, in favor of approving GE alfalfa with geographic restrictions. Organic Valley and Stonyfield Farm opined similarly, in what would seem to be a coordinated fashion. When the USDA laid down its decision on the alfalfa in question, all hell broke loose in the organic community. (And I’m not talking about Michael Pollan deciding to reclassify alfalfa as a grass.)

The first to come out swinging was Ronnie Cummins, of course. He accused the “Organic Elite” of surrendering to Monsanto.

In the wake of a 12-year battle to keep Monsanto’s Genetically Engineered (GE) crops from contaminating the nation’s 25,000 organic farms and ranches, America’s organic consumers and producers are facing betrayal. A self-appointed cabal of the Organic Elite, spearheaded by Whole Foods Market, Organic Valley, and Stonyfield Farm, has decided it’s time to surrender to Monsanto.

To support this thesis, Cummins weaves together a surprising web of campaign contributions and tales of greenwashing and “Natural” fraud. Them’s fightin’ words. But the response did not come from those food companies first, instead, it came from the Non-GMO Project, which was also criticized. In Team Organic will Never Surrender to Monsanto, Director Megan Westgate corrected some of Cummins’ false claims, while calling for him to work together with them to fight genetic engineering. In her response, however, I would like to point out two very curious statements.

The first is her opening statement about the rush of radical activism. While trying to appeal to Cummins’ desire for a return to radicalism, this is instead adding to the legitimacy of such actions. While Megan only interrupted a inaugural ceremony, others thinking along the same lines have destroyed field stations and research in UC Davis in 1999 to uprooting GE grapes in France last year. While she is trying to convince Cummins’ that her organization is sincere about being totally-completely-non-negotiably anti-GE, there is a danger in promoting the direct action style of “combat” in what it can lead to. “Combat” was her choice of words, and it does not promote civil political dialog.

The second thing that stuck out was how Megan Westgate described herself “As a founding board member of the Non-GMO Project, and its first (and only) Executive Director”. This implies that she both founded the Non-GMO Project and directed it from the beginning. Neither is true. Nor is her description of its history in the following paragraph, where she says that the organization started in Tuscon, Arizona. It started in Berkeley, California, and it mimicked the approach initially going on in Tuscon (which Megan doubtlessly was involved in by her description) of contacting manufacturers to pressure them to not buy GE crops for use in their food. Later, when the food companies (Whole Foods, Organic Valley, Stonyfield Farm and several others) took over the project, they made her the Executive Director even though there was someone else who ran it before her – they just didn’t have the title of “Executive Director.” How do I know all this? Robin Jane Roff, a geography researcher wrote half of her thesis on it, and what not only a volunteer for the project at one point, but also interviewed the then-organizer. The Non GMO Project’s history is briefly described in No Alternative, a peer-reviewed article. Suffice to say, both Cummins’ and Westgate’s descriptions of the history and purpose of the Non-GMO Project are wrong.

My take on the Non-GMO Project is that it is an organization  intended to create a niche market for non-GE foods. As such, it has even been saying that being certified organic is not enough to avoid genetic engineering – you have to get certified as such. Insofar as it verifies products of being below a certain amount of GE material, it is not a greenwashing effort. However, in the past year they have begun to market themselves by trying to raise doubts about the safety of GE foods, and presenting their verified products as being “safe” from those risks. As they are trying to build a brand name, they need people in their target demographic to want to pay more for the ‘verified’ food products, which is probably why the public response to Cummins and the OCA is not to condemn the accusations of “surrender” but to instead try to make peace. His audience is their niche market.

And I almost forgot one detail that makes the Cummins vs Westgate argument more interesting still – Ronnie Cummins is on the communications committee of the Non-GMO Project. Sounds like harmonious communication. (See note at bottom)

Publicly, the response from these food companies (and other anti-GE organizations) was all along the lines of “fighting the common enemy” – that being Monsanto, of course. Within a day of each other, Whole Foods and Stonyfield Farm said pretty much the same thing. Blogs and twitter accounts lit up with chatter. (In what was a smart move for their group, they are trying to rally around raising money to sue the USDA over the alfalfa decision and more.) In particular, I would like to mention Barth Anderson at Fair Food Fight, who gives an animated summary of other parts of this story that I have left out, and whose opinion I will come back to.

In private, however, Whole Foods circulated an email that went a little further. This was revealed by Cummins in his next tirade against Whole Foods and more, titled Monsanto Nation: Exposing Monsanto’s Minions.He took umbrage at the following passage from their no-longer-internal memo:

Why is the OCA spreading misinformation? That’s a hard question for us to answer. Perhaps because we don’t share their narrow view of what it means to support organics, or perhaps because we do not support them with donations. Either way, it’s a shame that an organization that claims to “campaign for health, justice and sustainability” can’t simply tell the truth. This just confuses consumers. Despite all their noise, no industry leaders listen to the OCA – but uninformed consumers might. Their fear-mongering tactics, combined with the OCA’s lack of transparency about its funding sources, underscore the fact that it is neither credible nor trustworthy. We can only assume their activities are intended for further fund-raising.

Ouch. Cummins’ response was less visceral, but still focused on trying to divert them from their current business practices, and trying to highlight how much this event has pushed these organizations to campaign harder against GE. He also considers campaigning against Whole Foods. (The full Whole Foods email is available here for context, courtesy of the OCA.)

While the chatter about this deregulation event is dying down, it has revealed something very interesting about the landscape of opinion about genetic engineering amongst its opponents in the organic community. Some are willing to pursue options for coexistence of GE and non-GE, while others are unwavering in their position and will accept nothing short of no-GE-whatsoever. In other words, that one farmer’s right not to grow trumps another’s right to grow. In response to Cummins and the Organic Consumers Association, the organizations that advocated for co-existence could have used this opportunity to call out the unilateral stance of the OCA and how it reveals the kind of thinking that leads to polarized debate and likely, a complete loss for their side. Ronnie Cummins is probably not the ally that they seek, and the next time they talk about anything smacking of co-existence this will come up again, and again.

This is one interesting exchange, but it is part of a wider issue that appears to be troubling the non-GE sector of American agriculture: to be non-GE or anti-GE? To coexist or to impose? (To commit absolutely to a philosophy or do what makes money?) The USDA was considering an option that could have changed how GE crops would be regulated, something that would have been better, from their perspective, than the complete deregulation that did occur for alfalfa. If these organizations instead backed the coexistence proposal, would the outcome have been different? Strangely, I have heard many people complain that the USDA didn’t choose the third “coexistence” option, but when asked, none of them supported it when it was proposed. I guess agreeing to co-existence would mean giving up on the pure anti-GE campaign to just be non-GE. There is an identity crisis going on in the organic and non-GE community, and all it took was giving a third option to reveal it. The next step should be to explore the diversity of opinions and see what people actually think, not a handful of opinion-leaders. Those opinion leaders are saying that co-existence is not possible.

How about actual co-existence? Let me return to Barth Anderson:

But let’s face up to the cold, cruel reality on “coexistence,” organic activists and bloggers. Organic ag has been coexisting with Monsanto and GE crops — for years — and to believe otherwise is lunatic, crazypants denial. To claim that organics will never coexist with biotech when GE corn is popping up in Mexico of all places; to show the unmitigated gall of telling organic farmers that they shouldn’t receive compensation for damages or expect organic consumers to endorse such a thing; to believe that fighting for a ban is better than giving farmers the regulations they need to exist in the real world alongside biotech ag — it’s the absolute, astonishing height of absurdity.

Coexistence is not the death of organics, and compensation is not “hush money.”

While everyone seems to be talking about compensation and losing organics and political pressure, etc, there is a glimmer of good news about the prospect of getting disparate segments of agriculture to cooperate. For several years there has been an agreement in place in the Imperial Valley, CA, where most alfalfa seed is grown. The agreement states that none of their GE alfalfa is to be grown there, to protect the markets of the many non-GE alfalfa seed producers. Coexistence, without any lawsuits, grandstanding, or name-calling. You mean farmers talk to each other and figure out solutions between each other and companies like Forage Genetics? Amazing!

While rifts appear to have emerged between those who are happy with compromises and those who are not, for now these anti-GE organizations appear to be trying to get along again. Ronnie Cummins will be talking Thursday evening during a live internet broadcast about the issue of “coexistence” (in scare quotes) with genetic engineering, for those interested. It will likely be an attempt to bring wavering opinions back in line with their uncompromising viewpoint, which will ultimately only make it harder for them all.

Note: As of 10-18-2011 the Communications Committee page on the Non-GMO Project site is gone. The committee still exists, according to this document, however there is no information about who is on this committee on the site anymore. From the Google Cache of 10-08-2011, the committee consisted of these people:

Communications Committee Members:

Bob Gerner, The Natural Grocery Company
Brie Johnson, Straus Family Creamery
Corinne Shindelar, Independent Natural Food Retailers Association
Franklin A. Santana, Down to Earth ALL VEGETARIAN Organic & Natural
Jeffrey Smith, Institute for Responsible Technology
Ken Roseboro, The Organic and Non-GMO Report
Maria Emmer-Aanes, Nature’s Path Organic Foods
Mark Squire, Good Earth Natural and Organic Foods
Nona Evans, Whole Foods Market
Patrick Conner, The Big Carrot
Phil Bereano, Activist & Scholar on GMO Issues
Ronnie Cummins, Organic Consumers Association
Todd Kluger, Lundberg Family Farms
Tom Wright, Sustainable Business Practices
Trudy Bialic, PCC Natural Markets

In December, the USDA held a meeting with several stakeholders, and the transcript of this meeting can be found here. There are several ideas being floated around, and some familiar names. I’ll have more to say on this meeting later. But one statement struck a chord, and that was that there wasn’t enough time for discussion between the meeting and the end of the Alfalfa comment period. Of course, let’s ignore the fact that GE crops have been grown for 14 years, and that Alfalfa was first deregulated years ago. There has been plenty of time for discussion, but I guess no one has been trying to make this discussion happen in a productive manner until now. Kudos to the USDA for getting things going, though it be in the 11th hour for this particular transgenic crop.

The Alfalfa EIS for the first time gives an additional option of a coexistence plan that carries with is some geographical restrictions. To make sure that people could find it, they extracted the geographical restriction proposal so everyone could find it easily. When I read it, I was pleasantly surprised at how they divided states into different tiers, with no restrictions for the alfalfa in most states, and increasing restrictions depending upon the presence of non-GE growers and seed producers nearby.

While some were calling for shrill rejections of anything smacking of ‘co-existence’ whatsoever, Whole Foods on the other hand, publicly supported this proposal. Also see the Food Safety News article about it. Some company sources seem to not be pleased by the geographical restrictions, perhaps threatening to sue the USDA if adopted. Maybe it is a good compromise, as Calvin & Hobbes once said, because it “leaves everyone mad.”

When I thought about the geographical restriction idea, there were some things I liked about it, such as the potential to allow the crops to be grown in most places, while minimizing the impact to non-GE seed producers. For export markets, keeping confidence in the non-GE status of seeds and hay is important, particularly when the importing nations have not yet approved the transgenic events being grown here in the US.

There are also things not to like about it. For instance, 5 mile distances imposed do not take into account the different conditions from one location to another. While I understand that 5 miles is being chosen to make it beyond the range of the typical honeybee, as Anastasia demonstrated this overlooks existing research on rates of actual cross-pollination. drawing a 5-mile boundary around fields that are to be protected from any and all bees gives one grower inordinate rights to restrict the growing practices of others around them. I do not know what distances would be appropriate to require for such regulations if enacted, but when I read the language of the proposed rules closely, I noticed two things: treating pollen as an aggressor, and giving only one class of farmer the ability to halt the activities of another. I don’t have strong feelings over the trait or the proposed deregulation options, but given that this Alfalfa EIS if accepted has the potential to impact the regulation of many other GE crops down the road, I decided yesterday I wanted to whip up a quick comment.

Anastasia and I discussed these issues over the phone, and we both agreed to send in a joint comment. I wrote and submitted it as a PDF by email, and asked for confirmation that it was accepted just to make sure it was. (So far, no word back) Feel free to download and look at it in that form, or keep reading below. In the future, perhaps there will be more time to write draft comments and get more names attached to it.

So without further ado here comes Biofortified’s first comment on a pending Environmental Impact Statement!

Biofortified.org Comments on the Glyphosate-Tolerant Alfalfa Events: Final Environmental Impact Statement (December 2010) (Document ID APHIS-2007-0044-12532)

Biofortified.org is an independent group website devoted to providing factual information and fostering discussion about agriculture, especially plant genetics and genetic engineering. Karl Haro von Mogel and Anastasia Bodnar are the two Executive Editors, and this represents their opinions with regard to the proposed deregulation of Glyphosate-Tolerant Alfalfa.

We feel that although we do not have strong opinions about these transgenic events in particular, that this Environmental Impact Statement merits comment due to its focus on the important issue of coexistence between Genetically Engineered (GE) and non-GE forms of agriculture.

Pollen as an aggressor?

In debates over unintended admixture of GE and non-GE crops through cross-pollination, it is often suggested that the source of the pollen bears responsibility when this occurs. Opponents of GE crops vociferously argue that the farmer growing (or the organization that created) a GE crop should be held responsible when unwanted cross-pollination occurs. The argument is that if a non-GE farmer loses an economic premium via the presence of transgenes above a certain threshold, that this presents an undue economic harm. But we can easily envision potential future situations where this would result in the opposite of what might be intended by such a perspective.

Genetic engineering has the potential to make crops such as wheat and peanuts that are no longer allergenic, which can benefit people who are sensitive to these foods. But in these cases, cross-pollination from non-GE peanuts and wheat would not only cause economic harm to the growers of hypoallergenic specialty varieties, it could also be dangerous for consumers allergic to the proteins in the non-GE varieties. If you take the perspective that the source of the pollen is to blame, then you must conclude that non-GE wheat or peanuts must be responsible for any harm caused to such hypoallergenic varieties.

Issues of cross-pollination are not exclusive to debates over genetic engineering. In California, there are currently seedless mandarin orange farmers that are complaining about cross-pollination from nearby citrus groves. These particular mandarins produce seedless fruit without pollination, which fetches a price premium several times higher than mandarins with seeds in them. However, if a different variety of citrus trees is grown nearby, and bees bring pollen from these other varieties while visiting the mandarin flowers, the mandarins will develop seeds and lose their value. As a result, the mandarin growers are trying to prevent beekeepers from being able to operate nearby to protect their price premiums. Who is responsible in this case? Although it is more complicated as there are three parties instead of two, it does illustrate that we clearly need a wider discussion of the issue of cross-pollination within and without genetic engineering. Unless we can answer the question of how different citrus growers and beekeepers can coexist in California, we cannot answer the question of how to have long-term meaningful coexistence of GE and non-GE crops. What ethical principles we derive must apply broadly in many different situations.

Geographical Restrictions

The USDA has proposed as one of its deregulation options the possibility of restricting the growing and seed production areas of GE alfalfa to reduce the possibility of unwanted cross-pollination from GE to non-GE alfalfa seed supplies. Geographic restrictions may help maintain the ability of both seed systems to coexist. For those concerned about exporting non-GE alfalfa to nations that have not approved the GE varieties, it could also help maintain confidence in its non-GE status by those export markets. However, we foresee a problem with how the rules are being proposed that needs to be addressed.

According to the EIS, farmers growing GE alfalfa for hay or for seed cannot grow within certain distances of non-GE alfalfa fields:

“In Tier III states GT alfalfa for forage cannot be planted in counties where seed is grown (based on the 2007 Census of Agriculture).”

And

“GT alfalfa seed production will be limited to the geographic areas in Tiers II and III where the grower can maintain isolation distances of 5 miles between GT alfalfa and conventional alfalfa.”

The problem with this as it is worded is that it puts the responsibility for isolation entirely on one party. While this may at first make intuitive sense, let’s suppose that in a Tier II or III state, a particular region has an abundance of GE alfalfa being grown for forage or for seed, and no non-GE alfalfa is being grown nearby. Let’s say that all non-GE alfalfa fields are greater than 5 miles away, or are in another county. There would be no conflicts in this situation, which we believe is what is intended. However, should just one non-GE alfalfa seed producer or forage grower decide to start planting amongst the GE alfalfa growers or seed producers, a problem arises. However, if such a conflict arose it would be the established GE alfalfa operations (and not the encroaching non-GE alfalfa) that would be considered in violation of the rules and would need to shut down. This means that as the proposed regulations are worded, GE alfalfa growers and seed producers are afforded a second-class citizen status next to non-GE growers. Perhaps the USDA intends by the first quoted passage above to define the non-GE seed-production counties by the 2007 census alone, or change it with future censuses – which would have different implications for coexistence in either case. But it would take just one non-GE alfalfa forage field to shut down or cause a GE alfalfa seed production operation to move, and that sets a troublesome precedent.

Responsibility on both sides

It takes two gametes to make a seed. Likewise there are things that both GE and non-GE farmers can do to foster coexistence, as well as the USDA.

Both GE and non-GE farmers must share responsibility for unwanted cross-pollination. There are sensible strategies that the farmers can employ such as buffer strips and alternative flowers for bees to visit that they will prefer over alfalfa should unwanted flowering occur, for example. Genetic barriers to reproduction between GE and non-GE varieties can also be employed by breeders on both sides to limit successful pollinations. Unilateral freedom to operate and expect only your neighbor to change their operation must be resisted in either case. Communication between neighboring farmers is paramount.

The USDA can play a large role in this. While some question the USDA’s authority to regulate GE crops in anything other than an all-or-nothing approach, the USDA’s role in extension is clear and unambiguous. Improvements in extension and outreach education can help make coexistence work. We would go so far as to say that coexistence cannot work without adequate extension to prepare farmers for such conflicts as they may arise.

Conclusion

We appreciate being able to have the opportunity to comment on the deregulation of Glyphosate-tolerant alfalfa and can be contacted at contact @ biofortified.org if you would like to discuss our comments with us further.

Sincerely,

Karl Haro von Mogel

Anastasia Bodnar

Executive Editors, Biofortified.org

Alfalfa by TwoWings via Wikimedia Commons.

Alfalfa is an awesome plant that is quite unique among field crops. It’s a legume, which means it can fix nitrogen (meaning less nitrogen fertilizer needs to be added) as well as being one of very few perennial crops, which means it can be left in the field to grow year after year and keep being harvested. It’s roots can grow quite deep so it can be very drought tolerant. It produces a high quality forage for animals, and is especially great for dairy cows.

One problem with alfalfa is that, as it is left to grow for multiple years, weeds can accumulate and the alfalfa stand will need to be plowed under. Weeds can be controlled to some degree with harvesting at just the right time (before the weeds make seeds) but at some point that isn’t enough. Enter Roundup Ready alfalfa which can be sprayed with the herbicide glyphosate to control weeds while leaving the alfalfa healthy. It allows farmers to leave their alfalfa stands standing longer.

The sky is falling… ok, not really

Groups like Food Democracy Now are urging people to sign petitions against the deregulation of RR alfalfa, claiming it will “fundamentally undermine the entire organic industry overnight” (emphasis theirs).

These petitions are being promoted by some pretty heavy hitters, including Michael Pollan. He tweeted:

Time to weigh in: the USDA is about to rule on GMO alfalfa, a serious threat to organic dairy. [with a link to the petition]

All hyperbole aside, is Roundup Ready alfalfa really such a threat? Does it really have the potential to destroy all that is organic in one fell swoop?

The truth is, no, it’s not and no it can’t. There are some specific facts about the way alfalfa is grown and harvested that actually mean that organic alfalfa production won’t be affected at all, and other organic crops certainly won’t be affected (because they aren’t sexually compatible with alfalfa anyway!).

Jeff Fowle is a farmer and rancher in California who has been growing alfalfa for 30 years. Here’s what he has to say about it:

For those throwing out arguments against GMO alfalfa, it is very apparent that they have no understanding of the production of the forage. Here are two major points about alfalfa that need to be understood.

First, alfalfa is harvested multiple times each year, called a “cutting.” Depending on the region it is grown, a farmer can get anywhere from two cuttings in the far north, to twelve cuttings in areas of southern California and Arizona. Alfalfa is cut at the point when its total digestible nutrient (TDN) is at its highest, which occurs at a point when the plant is just starting to “bud,” or develop its flower. If alfalfa is cut when it has reached full maturity, it has poor feed value, is extremely course, does not retain leaf and is good for little more than bedding.

Second, depending on the region, an alfalfa stand remains productive, yielding at least six tons per acre, per year, for six to eight years and is then rotated out or inter-seeded with grass to maintain forage yield, orchard grass is common in our area. It is not inter-seeded with alfalfa, because by the second year, alfalfa plants release a natural inhibitor in the soil that prevents new alfalfa plants from establishing. It is for this reason that either grass is inter-seeded or the stand is plowed under and rotated to another crop for at least a year.

There’s more alfalfa goodness in his post Roundup Ready Alfalfa, Understanding Practices. I hope you’ll check it out!

Seed production has special challenges even without biotech

Now, that doesn’t mean that RR alfalfa doesn’t have any complications at all. As with many biotech crops, seed production is where people must take care.  A non-biotech seed production field must be isolated from a biotech seed production field and vice versa. And two non-biotech seed production fields of different varieties must be isolated from each other as well. This is because fields that aren’t isolated from each other will cross pollinate and the resulting seed won’t be “pure”, meaning it won’t all be of the variety that the seed producer wants and will not be able to be sold for as high of a price.

There are already very strict regulations on how seed is produced, including alfalfa seed. For example, check out the General rules for seed certification of the state of Washington. The rules ensure that seed is pure, free of genes from other varieties and free of weed seed.

Land requirements for the production of alfalfa seed crop are as follows:

1. Prior to stand establishment an alfalfa seed crop of the same kind must not have been grown or planted on the land for four years for the production of foundation or registered class or one year for the production of certified class; except two years must elapse between the destruction of dissimilar varieties, which are varieties that differ by more than four or more points on a dormancy rating scale as reported by the National Alfalfa Variety Review board.
2. Reseeding of an alfalfa seed field due to failure or partial failure of the first seeding may be done by referring to the guidelines in WAC 16-302-045(5).
3. Ditchbanks, roadways, etc. adjacent to a certified alfalfa seed field must be free of volunteer alfalfa and prohibited noxious weeds.
4. Volunteer alfalfa plants in the alfalfa seed field may be cause for rejection or reclassification of a seed field.
5. No manure or other contaminating materials may be applied during the establishment and production period of the alfalfa seed stand.

Isolation requirements for the production of alfalfa seed crop are as follows:

Alfalfa seed crop for certification must be isolated from all other alfalfa varieties or fields of the same variety not meeting varietal purity requirements for certification as follows:

Remember, all of these special land and isolation requirements have nothing to do with biotech, they exist to keep one variety of alfalfa from contaminating another. The requirements have been tested and shown to provide ample protection for  a seed production field. The same methods would have to be used if RR alfalfa was deregulated by the USDA, but it may be appropriate for longer distances to be required if research showed that pollen could travel greater than 900 feet. In fact, there have been quite a few experiments done to see if additional precautions are needed for biotech alfalfa compared to non-biotech. And the result is that yes, some additional precautions probably need to be taken.

How much distance is enough?

USDA Agricultural Research Service plant geneticist Daniel Z. Skinner in Washington state and Kansas State University alfalfa breeder Paul St. Amand worked together on a 3-year biorisk assessment study way back in 2001. The goal of the study was to make sure “that problems don’t arise from the accidental dispersion of transgenic alfalfa pollen to wild populations of alfalfa.” They found that bees can carry alfalfa pollen at least 2/3 of a mile.

The researchers recommend that producers consider changing their seed-production practices. They suggest placing bee colonies in the center of the alfalfa field instead of along the side and surrounding the field with flowering crops like birdsfoot trefoil or sainfoin so that bees would become covered with other pollen and no longer transmit alfalfa pollen if they leave the field. These practices are expected to limit pollen dispersal, but Skinner cautions that more testing will have to be done.

Another study from 2001 by researchers from Forage Genetics found that a distance of 2000 feet (0.38 miles) reduced transgene flow to 0.05% which is far under the 0.9% required by the Non-GMO Project and the European Union. In fact, the 900 feet required under current foundation seed guidelines reduced gene flow to 0.34%, also well under the 0.9% guideline, as shown in this graph.

Other studies have found that pollen traveled greater distances, up to 1.7 miles – the distance likely varies widely by location and climate so recommendations that don’t take location into account (like the blanket rules proposed by Secretary of Agriculture Vilsack) could lead to distances that were either too great or too small.

These recommendations, combined with other science-based recommendations about seed production can be used to ensure that the transgene in biotech alfalfa won’t be found in non-biotech alfalfa or in wild alfalfas.

If that 0.05% isn’t enough to satisfy, there always exists the possibility that non-biotech alfalfa seed production areas can be designated by local or state governments, similar to the ban on canola (biotech or not) in Oregon to protect seed production of sexually compatible crops like broccoli as I described in Sugar beet biology (in the section Distance as mitigation strategy).

The solution to coexistence between biotech and organic isn’t running around like Chicken Little or crying wolf. The solution lays, as usual, in sound science guiding seed producers and farmers to make sound decisions.

For further reading on alfalfa and transgene flow, including specific discussion of what Monsanto and Forage Genetics are working on to avoid gene flow, see Seed production issues for genetically enhanced alfalfa (2004) by Shannon Mueller, University of California Cooperative Extension. Also see the Environmental Impact Statement (2010) the USDA conducted on RR alfalfa as well as other USDA documents on the subject.

At this time, coexistence between organic and conventional farms is worked out individually by neighbors. On a national scale, organic groups have initiated multiple lawsuits against the USDA in what some say are blatant attempts to prevent biotech crops from being grown at all (sugar beets, alfalfa).

In an effort to solve the problem, a creative potential solution has been devised – partial deregulation of biotech alfalfa. This would “include isolation standards from other crops, set geographic restrictions on where the crop is grown, spell out harvest periods and regulate equipment use,” writes Charles Abbott on Check Biotech. One problem with this plan is that the USDA might be overstepping its regulatory authority. The USDA is charged with determining the potential pest status of any biotech crops submitted for deregulation, but doesn’t have requirements or authority to say what farmers can and can not do with a crop once it is deregulated.

Today, this issue is being debated in the House Agriculture Committee.

For more about the debate in real time, follow Philip Brasher, Chris Clayton, and Sara Wyant on Twitter, among others.

Edit: while researching for the post What the heck is alfalfa, anyway? I found the document where the specific conditions for conditional deregulation are laid out. The recommendations aren’t as bad as I thought they would be. They should be more than enough to satisfy anyone who knows even a little about alfalfa biology.

Combined Isolation Distances and Geographic Restrictions on the Production of GT Alfalfa

Alternative 3 (Isolation/Geographic Restrictions Alternative) describes a combination of isolation distances and geographic restrictions on hay and seed production to address and resolve coexistence issues and concerns about risks of cross pollination and other potential impacts to conventional, and organic alfalfa producers while allowing the commercialization of GT alfalfa. This third alternative would impose management practices for the planting, harvesting, use or sale of GT alfalfa seed and in some locations hay. This alternative could be implemented by an APHIS decision to deregulate in part, or through a Federal/industry partnership arrangement. Under this alternative, the developer (marketer) of GT alfalfa would ensure that end users are using the required management practices. They might choose to do this through contracts or licenses, or by other means. A training component would also be part of the program to educate producers about the required stewardship practices. Reporting requirements for the developer (marketer) subject to verification would be used to ensure compliance with the terms of the program. Under this alternative, failure to comply with the requirements may result in penalties to the developer (marketer). The required management practices would undergo periodic reviews to determine if modifications were warranted. Changes to the management practices would be approved based on available data on their effectiveness in supporting coexistence.

The following is a description of the very specific management practices that would be included in the requirements described above for GT alfalfa.

GT Alfalfa Production

• GT alfalfa forage fields may not be harvested for seed. The only GT alfalfa seed fields would be in the geographically restricted areas, described below, that are designated for GT alfalfa seed.
• GT alfalfa seed bag labeling and seed identification (e.g., a unique seed colorant) would be required. These product identity mechanisms would be designed to notify all GT alfalfa forage growers of the presence of the GT alfalfa trait and the geographic limitations for product use.
• An annual report would be submitted to the USDA summarizing activities in education and training, monitoring, and compliance with the conditions of this license agreement. The USDA or a designated third party could audit the petitioner’s records to determine compliance with the conditions of this license or otherwise investigate potential noncompliance with these conditions.
• Develop an education program and provide training to ensure that all growers, distributers and handlers of GT alfalfa are aware of the management practices, geographic restrictions and the isolation distance set forth in this licensing.

GT Alfalfa Forage

GT alfalfa seed production

Supreme Court of the United States (Source: SupremeCourt.gov)

In what (for me) seemed like no time at all, the Supreme Court of the United States (SCOTUS) has issued its ruling on the Roundup Ready Alfalfa case. In a landslide 7:1 ruling (with one recusing), the high court has lifted the nationwide ban on planting genetically engineered herbicide-tolerant alfalfa. What does this mean for GE alfalfa and sugar beet plantings that have been affected by the courts?

Although the social media chatter over the case was mostly characterizing it as crucial to win to “stop” GE alfalfa, it was really more about what the proper course of action is for the GE regulatory process, and whether a court can issue an injunction against planting GE crops while the environmental impact statement (EIS) is being drafted, without having to provide evidence of harm. For more background information, read my previous post about the case. In essence, the court was considering whether the lower court was right in “remanding” the GE alfalfa back to the USDA to determine whether it was ok to plant, while also issuing an injunction preventing them from saying it was ok to plant until the EIS is complete.

SCOTUS ruled that the lower court acted wrongly by remanding and enjoining at the same time.

The District Court abused its discretion in enjoining APHIS from effecting a partial deregulation and in prohibiting the planting of RRA pending the agency’s completion of its detailed environmental review.

(…)

Most importantly, respondents cannot show that they will suffer irreparable injury if APHIS is allowed to proceed with any partial deregulation, for at least two reasons. First, if and when APHIS pursues a partial deregulation that arguably runs afoul of NEPA, respondents may file a new suit challenging such action and seeking appropriate preliminary relief. Accordingly, a permanent injunction is not now needed to guard against any present or imminent risk of likely irreparable harm. Second, a partial deregulation need not cause respondents any injury at all; if its scope is sufficiently limited, the risk of gene flow could be virtually nonexistent. Indeed, the broad injunction entered below essentially pre-empts the very procedure by which APHIS could determine, independently of the pending EIS process for assessing the effects of a complete deregulation, that a limited deregulation would not pose any appreciable risk of environmental harm.

This sort of ruling was suggested by reading the transcript of the hearing – it sounded like they were interested in the double-barrier that the lower court had erected. By sending the alfalfa back to the USDA the lower court was saying that the USDA needed to figure out what to do about the alfalfa and whether it can be planted in the future. But by also issuing an injunction the court was saying that the USDA could not decide what to do according to its procedures unless the EIS is fully complete, which means no partial deregulation, which would be allowing some RR alfalfa plantings to go forward. In a bizarre twist, the lower court also said that farmers currently growing it could continue growing it. So essentially the court was saying that the USDA could not decide to allow some farmers to grow it while the EIS is pending because of environmental risk, but the court could. The SCOTUS latched onto that contradiction in their ruling:

First, the impropriety of the District Court’s broad injunction against planting flows from the impropriety of its injunction against partial deregulation. If APHIS may partially deregulate RRA before preparing a full-blown EIS—a question that we need not and do not decide here—farmers should be able to grow and sell RRA in accordance with that agency determination. Because it was inappropriate for the District Court to foreclose even the possibility of a partial and temporary deregulation, it necessarily follows that it was likewise inappropriate to enjoin any and all parties from acting in accordance with the terms ofsuch a deregulation decision.

And to sum it all up:

In sum, the District Court abused its discretion in enjoining APHIS from effecting a partial deregulation and in prohibiting the possibility of planting in accordance with the terms of such a deregulation. Given those errors, this Court need not express any view on whether injunctive relief of some kind was available to respondents on the record before us. Nor does the Court address the question whether the District Court was required to conduct an evidentiary hearing before entering the relief at issue here. The judgment of the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.

So what does this mean about GE alfalfa plantings, can farmers just start buying and planting the herbicide-tolerant legume? No, what was lifted by the court was the injunction that prevented the USDA from allowing some farmers to plant GE alfalfa under partial deregulation. The court did not touch on the issue of whether it was right to re-regulate the alfalfa, or on the issue of whether an evidentiary hearing was required. What they did do was determine that the broad injunction was not justified by the National Environmental Policy Act (NEPA), and is saying that it is up to the USDA to assess whether it can partially deregulate the alfalfa should it choose to do so. Until that happens, no new alfalfa plantings can happen.

The dual remand/injunction nature of this situation has led to a lot of confusion in the first few hours of the news coming out. While the traditional news sources are getting it mostly right as lifting the ban, others are saying almost the opposite. The Center for Food Safety, the anti-GE lawyer group that led the legal battle in the first place, is also calling it a victory! Their statement has been carried through social media networks quickly. They said:

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.”

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:

• 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.

Uh oh… whenever you see an ellipses (…) check what was removed. Here is the full paragraph:

In sum, we do not know whether and to what extent APHIS would seek to effect a limited deregulation during the pendency of the EIS process if it were free to do so; we do know that the vacatur of APHIS’s deregulation decision means that virtually no RRA 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. In light of these particular circumstances, we hold that the District Court did not properly exercise its discretion in enjoining a partial deregulation of any kind pending APHIS’s preparation of an EIS. It follows that the Court of Appeals erred in affirming that aspect of the District Court’s judgment.

The court did not rule that no RR alfalfa can be grown, this paragraph says that the court knows what the lower court ruled and its implications. So that’s nothing new. The whole previous section is filled with discussion of what exactly was meant by the lower court’s ruling, so this is a summary of that section. The court did not address whether the lower court was right in sending the alfalfa back to the USDA, from page 3 of the syllabus:

Because petitioners and the Government do not argue other-wise, the Court assumes without deciding that the District Court acted lawfully in vacating the agency’s decision to completely deregu-late RRA. The Court therefore addresses only the injunction prohibiting APHIS from deregulating RRA pending completion of the EIS, and the nationwide injunction prohibiting almost all RRA planting during the pendency of the EIS process.

As if that was not enough spin for the Center For Food Safety to use to declare victory, they also appear to have invented a new part of the ruling that is not even in there.

Any further attempt to commercialize RRA even in part may require an EIS subject to legal challenge.

The court did NOT rule on what would be required for partial regulation, in fact they emphatically declared that they were not ruling on that issue:

We do not express any view on the Government’s contention that a limited deregulation of the kind embodied inits proposed judgment would not require the prior preparation of an EIS.

(…) [note- you can check my ellipses if you want - nothing important left out]

Because APHIS has not yet invoked the procedures necessary to attempt a limited deregulation, any judicial consideration of such issues is not warranted at this time.(p19)

In fact, the ruling did mention in several places that a partial deregulation would involve an Environmental Assessment or EA (less involved than EIS). Page 9: (emphasis added)

In order for a partial deregulation to occur, respondents argued, the case would have to be remanded to the agency, and APHIS would have to prepare an EA “that may or may not come out in favor of a partial deregulation.”

And Page 10:

Nor is any doubt as to whether APHIS would issue a new EA in favor of a partial deregulation sufficient to defeat petitioners’ standing.

And most importantly, on page

If the agency found, on the basis of a new EA, that a limited and temporary deregulation satisfied applicable statutory and regulatory requirements, it could proceed with such a deregulation even if it had not yet finished the onerous EIS required for complete deregulation.

Keep in mind this is not the SCOTUS ruling that an EA is the appropriate action for partial deregulation though they seem to assume it, and they are certainly not saying that an EIS “may be required.” Granted, an EA could be challenged legally, but there is a difference between an EA and an EIS that goes beyond just how they are spelled.

I have left a comment on the CFS website asking for them to point out where in the decision they supposedly rule on this issue, but I expect, as before, that my comment will be moderated out of existence. Here it is for posterity:

Hi, I’m a little unclear about one statement made above about the SCOTUS ruling:
“Any further attempt to commercialize RRA even in part may require an EIS subject to legal challenge. ”
My reading of the ruling indicates otherwise – they said on the bottom of page 19:
“We do not express any view on the Government’s contention that a limited deregulation of the kind embodied in its proposed judgment would not require the prior preparation of an EIS.”
They also mention that a partial deregulation would involve an EA, not an EIS. Could you please point me to the passage in the ruling that supports what was included in your post?

Keep in mind, this press release was issued from the same lawyers that lost the case. As Mica Veihman from the Monsanto blog quips on twitter: “Wonder what Center for Food Safety’s statement would have said if the decision were the reverse. Hmmm…..” Still, you can’t fault them for being optimistic, just for making stuff up.

There is a silver lining for their side, however. The court did decide that conventional non-GE farmers and organic farmers have standing to claim that they can be harmed by cross-pollination of GE crops in court even if the cross-pollination has not yet occurred:

For example, respondents represent that, in order to continue marketing their product to consumers who wish to buy nongenetically-engineered alfalfa, respondents would have to conduct testing to find out whether and to what extenttheir crops have been contaminated. (p11)

Such harms, which respondents will suffer even if their crops are not actually infected with the Roundup ready gene, are sufficiently concrete to satisfy the injury-in-fact prong of the constitutional standing analysis. (p13)

While you could say they are harmed by doing additional testing, at the same time they are charging more for such ‘verified’ food via the Non GMO Project. As standing was necessary for the merits of the case to be addressed at all, it is a thin silver lining to those that want to use the desire of some farmers not to grow any GE plants at all as a means to prevent others from growing any at all. And the level of risk of harm was determined by the court not to be sufficient for an injunction.

So what other implications will there be for GE crops, like sugar beets? They, too, have been sent back to the USDA for a full EIS rather than just an EA. It appears that although the court in that case did not yet grant an injunction against the sugar beets, the judge indicated it was possible, which this could prevent . It could mean that farmers could continue to grow GE sugar beets under partial deregulation despite the fact that the USDA has to draft an EIS for complete deregulation of the beets. The alfalfa is nearer to approving its EIS than the beets, so as I said before the implications for the beets will probably be greater than the alfalfa.

Source: Wikimedia Commons

It seems that the USDA may change its policy of doing the Environmental Assessment before the Environmental Impact Statement, so if that is the case I doubt many other crops being affected by this sort of thing. Except, perhaps, if the CFS or someone else successfully gets a court to reject an EIS and send it back to the USDA, this ruling could probably affect partial deregulation in that case.

Finally, as a 7:1 ruling, this is not a split-decision “blame Clarence Thomas for working for Monsanto 30 years ago” situation. (Which as a more legally-educated science blogger Ed Brayton confirms is not an issue.) This is an overwhelming ruling against the injunction preventing partial deregulation of the alfalfa, and it could set a precedent for lower courts on how they are able to determine what the USDA can or cannot do. The extreme measures of an injunction were ruled as not warranted in this case, which could affect others.

I hope this clears things up, and while the CFS continues to call their defeat a victory, I don’t think it will actually be added to their list of victories. The ban was defeated, not upheld.

It was so ordered.

More resources:

• Monsanto Press Release
• CFS Press Release
• BusinessWeek
• Reuters (on NY Times)
• Saint Louis Dispatch
• SCOTUS Wiki

Disclaimer: I am not a lawyer. This is not legal advice. Information purposes only and yadda yadda yadda. Please correct any misunderstandings in the comments.

Observers filing through to see a portion of the hearing. photo credit: Monsanto via Twitpic

There is certainly a lot of commotion about the first ever US Supreme Court hearing involving genetically engineered crops, which is being held today. The case is Monsanto Company v. Geertson Seed Farms, (SCOTUS Wiki) and depending on how this turns out, it could mean the end of genetically engineered alfalfa forever or the eventual destruction of all organic dairies, right? Well, no. So what is the court case about?

The court case is not actually about GE alfalfa, although this legal battle began with alfalfa. In 2006, several groups joined together led by the Center for Food Safety to sue the Secretary of Agriculture over the deregulation of roundup-ready alfalfa produced by Monsanto. The USDA had conducted an Environmental Assessment according to its GE crop approval policies and concluded that there were no big issues that they needed to investigate further. If they had found any in the assessment they would have moved on to the much more involved Environmental Impact Statement (EIS).

The court case over GE alfalfa was decided in 2007, with US District Court Judge Charles R. Breyer saying that the USDA should have done the full EIS, and placed an injunction on future plantings of GE alfalfa until such an EIS is conducted by the USDA. Farmers already growing the alfalfa could continue to grow it.

Since then, the case was appealed a couple times by Monsanto, leading up to the Supreme Court. The case is not about the specifics of alfalfa cross-pollination, organic farms, or export markets – it is actually just about the specific details of what is required to grant an injunction under the National Environmental Policy Act (NEPA). At one point, an evidentiary hearing was part of the short list of issues, but that has been dropped and this is what we have left:

(1) Whether plaintiffs under the National Environmental Policy Act are specially exempt from the requirement of showing a likelihood of irreparable harm to obtain an injunction; (2) whether a district court may enter an injunction sought to remedy a NEPA violation without conducting an evidentiary hearing sought by a party to resolve genuinely disputed facts directly relevant to the appropriate scope of the requested injunction; and (3) whether the Ninth Circuit erred when it affirmed a nationwide injunction that sought to remedy a NEPA violation based on only a remote possibility of reparable harm.

So while this is a case involving GE alfalfa, in many ways it is not even about genetic engineering. I had an hour-long conversation with one of the lawyers that filed an amicus brief (in favor of the anti-GE side) and learned a bit about the process and the issues involved. Essentially, it is over whether a court can grant an injunction (based on the NEPA) without presenting evidence of future harm, or even relying on remote possibilities. I would like to point out a few interesting observations I have made about this case and what it will mean or how it is being presented by either side.

First, this will very likely not matter very much for GE alfalfa. The injunction that prevents planting new stands of Monsanto’s forage will be lifted when/if the USDA approves the new draft EIS, which was completed in November 2009. What did they find? Well, pretty much the same thing as the original Assessment, just 1476 pages long. If Monsanto loses the case, the EIS may go through and the alfalfa gets approved again. If Monsanto wins the case, the injunction is lifted and farmers can plant GE alfalfa again while waiting for the EIS. So while some people have framed the case in terms of “stopping GM Alfalfa” it will probably not ‘stop’ the alfalfa at all. One of these two paths to approval may just be slower than the other.

Second, if the Supreme Court rules in favor of Monsanto, then that may have profound implications for the GE sugar beet situation. The same process of EA —> injunction —> EIS is playing out, and if I understand the legal issues involved, the greater effect of this case will probably be that it could allow GE sugar beet plantings to continue. (There was apparently a bentgrass field trial affected by something similar, too.)

Third, there is talk at the USDA about requiring all GE crops to undergo an EIS right from the start, and if that is the case, then it may not matter much for future GE crop regulation. I think there will be greater implications for other cases involving the NEPA, but I do not know enough about it to have any prediction of which result would be good or bad. The idea of requiring evidence before action is appealing, but I suppose I could find an example where we don’t have evidence and we would want to pause and conduct further research before continuing. How would the (near-zero) likelihood of the Large Hadron Collider causing a black hole fare under either outcome if someone wanted to stop its operation? (If it was in the US, that is.)

There has been a slough of amicus briefs filed in support of either side, and I think it is kind of funny that each side only mentions the briefs filed in their favor. The Center for Food Safety’s “full list of amici” has only their own supporters in the list. (The same with Monsanto’s press release) The SCOTUS Wiki has everything.

Interestingly, one of the amicus briefs written by the Union of Concerned Scientists clearly states that GE crops have increased yields (3-4% in corn), while the Center for Food Safety’s page states that the UCS report found they have not. I left a polite comment on this page last week pointing out that the report Failure to Yield did in fact estimate a yield increase, and while I could see that comment for several days pending moderation, I no longer see it. It may have been deleted. Does the UCS know that the CFS disregards their research findings – even when they put those findings in an amicus brief filed in favor of the CFS?

It is also interesting to note that the Consumers Union poll that was misrepresented by the CU itself has also made it into some of these briefs as evidence that organic consumers would reject “contaminated” organic foods and that farmers would lose their markets. In reality, the biased poll showed the opposite – that most organic consumers do not care or care little. The lawyer I talked to that filed one of the briefs, however, did not read the references used as evidence in the brief, and was only representing the interests of their clients (Also had no personal stake in the outcome). So take the statements about genetic engineering in these briefs with a grain of salty soil.

A lot has been written about alfalfa and markets and such in the amicus briefs, and it is possible that the justices could decide to rule on things that are more specific to GE crops, such as who has authority in deciding what is appropriate regulation of crop releases.

Finally, I would like to comment on one of the controversies surrounding the justices themselves. Justice Breyer has recused himself because the judge that issued the ruling in 2007 was his brother. That’s a pretty cut-and-dry conflict of interest. However many anti-GE individuals have been calling for Clarence Thomas to also recuse himself from the case because he used to work for Monsanto… 30 years ago.

I know of no case where working for an organization for a few years (1976-79) would be a conflict of interest after 30 years of time has passed (Now 31). My entire life isn’t even that long. I do not think that Thomas should have recused himself from the case (and he didn’t) because of the huge amount of time that has passed. It’s different people, a different company, and different issues.

The calls for his recusal instead stem from an analysis of Thomas’s politics and his assumed likelihood of ruling in favor of Monsanto. The court is split 5-4 on the conservative-liberal continuum, and Breyer was one of the liberal justices. With his recusal, that would make it 5-3, which worries the anti-GE folks. When I attended Zelig Golden’s talk at the MOSES Organic conference (former CFS lawyer whose name is still on the case), he talked about this worry as well, specifically mentioning the political split. However, genetic engineering in agriculture, despite their best efforts, is not a very politically polarizing topic. Predominantly liberal groups that oppose GE crops have been trying to link it to G.W. Bush and G. H.W. Bush policies, while Clinton and Obama do not appear to be very different. Heck, Jimmy Carter, a Democrat, is an advocate of GE crops. So to base demands for Thomas’s recusal on a political analysis is problematic.

Indeed, as some of the interests that are against GE alfalfa are businesses themselves, the CFS might find Thomas deciding in their favor. Even some who call for his recusal point out that his vote is not automatic. And I’ll be the first to say that I have an immense distaste for Clarence Thomas’s politics, particularly his views on the Establishment Clause of the Constitution, Abortion, etc. But these are not good reasons to justify his recusal from cases involving those issues, as much as I would want him to.

I am no legal scholar or historian, but it seems to me that if conflicts of interest are to stretch back to employment that is older than three decades, it will reduce the ability of the highest court in the land to do its job considering that each justice is a lawyer and has worked for lots of places, and know a lot of people. How many years since employment is too close for comfort, anyhow? Have Supreme Court Justices recused themselves for more years, or not recused themselves for fewer?

One of the important things that the court does is discuss and deliberate amongst themselves, and needlessly excluding voices from that discussion reduces the number of innovative legal solutions that the court can offer. While this case may set legal precedent for other NEPA cases in lower courts, this debate over 31 years since employment as a conflict of interest risks setting a social precedent that could harm other cases as well.

Mica at Monsanto has also commented on the case, and here is the first Associated Press article about the hearing. Scuttlebutt in Twitter is that the Supreme Court is “going down a disastrous path” by suggesting that the USDA should be in charge of GE crops. Outrageous! Let the dire predictions begin.

The case is expected to be decided in early June.