Supreme Court hearing on GMO Alfalfa

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.

Follow Karl Haro von Mogel:

Karl earned his Ph.D. in Plant Breeding and Plant Genetics at UW-Madison, with a minor in Life Science Communication. His dissertation was on both the genetics of sweet corn and plant genetics outreach. He recently moved back to his home state of California. His favorite produce might just be squash.