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42 Trends 1 (2010-2011)

handle is hein.journals/trends42 and id is 1 raw text is: overseas approvals and for the coexistence with organic and non-GMO crops (both of which cannot contain genetically modified organ- isms or GMOs). There are two types of cases that will establish how biotech seed companies must manage the risks of causing economic loss to non-biotech growers. The first is a fed- eral fight-addressed recently by the Supreme Court-under the National Environmental Policy Act (NEPA) where anti-biotech activists and organic growers are challenging the United States Department of Agriculture's (USDA) policy of conducting less rigorous environmental assessments (EAs) rather than the more exten- sive environmental impact statement (EIS) that two California federal courts have ordered. Monsanto Co. et al v. Geertson Seed Farms et al., 130 S. Ct. 2743 (June 21, 2010) (Geertson) and Center for Food Safety v. Vilsack, No. C:08-00484-JSW (N. Dist. Cal. 2009) (Vilsack). The second involves the common law liability of biotech seed companies for experimental rice that commingled, prior to U.S. approval, with the foundation seed used in rice produc- tion throughout the United States, causing loss of the European Union market for export- oriented growers. In re Genetically Modified Rice Litigation, 2009 U.S. Dist. LEXIS 98302 (Oct. 9, 2009). Under Geortson, federal law mandates segregation of biotech crops In the first case addressing agricultural biotechnology's environmental impacts the Supreme Court's 7-1 decision in Geertson reversed a three-year-old nationwide injunction that prohibited the planting of Monsanto's Roundup Readym alfalfa (RR Alfalfa). This ban had been in place since 2007 following the issuance of a preliminary injunction by California District Court Judge Charles Breyer (the brother of the environmental regulation scholar, Justice Stephen Breyer, who recused himself in Geertson). This preliminary injunction effectively halted further planting of RR Alfalfa. Geertson was a Janus-faced compromise decision that allowed seven Justices to join the opinion and both litigation sides to declare victory. First, the good news for the biotech seed industry: USDA is freed from the chains imposed by the nationwide injunction. Second, the Supreme Court found that USDA's nation- wide approval to RR Alfalfa was overly broad, given impacts to organic and non-GMO crops. While the Supreme Court lifted the blanket pro- hibition on the planting of RR Alfalfa, USDA it'approves wnen mere is a iegaiiy recognized risk of an economic impact to organic, non-GMO, or export-oriented crops. A Monsanto representative hailed the decision as excep- tionally good news that would allow farmers to plant the crop in the coming season, which would presumably include late-season planting in 2010. The Center for Food Safety, which is pur- suing NEPA cases challenging USDA's approval of biotech crops, warns that the ruling still makes it illegal for farmers to use the seed until the USDA issues the final EIS for RR Alfalfa, which is expected in early 2011. Justice Samuel Alito wrote for the Court, explaining that the district court went too far in issuing a nationwide ban on the seeds. Justice John Paul Stevens, nearing retirement, dissented. While the majority agreed with Justice Stevens that the court correctly ruled in sending the approval of the crop back to USDA to conduct an EIS, the choice of remedy was too drastic given USDA's planting requirements to contain RR Alfalfa using the following measures: (1) isolation distances between RR Alfalfa and other alfalfa to avoid gene flow; (2) harvesting conditions; (3) steam-cleaned planting and har- vesting equipment after RR Alfalfa and before further use with other alfalfa; (4) identification and handling (i.e., traceability) for RR Alfalfa seed; and (5) RR Alfalfa grower contracts requir- ing compliance with all other limitations set out in the proposed judgment. These measures are referred to as identity preservation requirements within the agricultur- al industry. In rejecting the preliminary injunc- tion, the Supreme Court took District Judge Breyer to task for refusing to accept the USDA's identity preservation plan while admitting that a nationwide injunction was a blunt instrument that might be unnecessary. A partial release pending EIS review would have prevented the injury to organic and non- GMO farmers, and the Supreme Court found that this fact was conceded by plaintiffs; hence the district court should have remanded the mat- ter to the [USDA] so that it could determine whether to pursue a partial deregulation during the pendency of the EIS process. Geertson, 130 S. Ct. 2743, 2754. If USDA had been allowed to establish a regional approach, it could 1 have found the middle path and removed the threat of harm that the plaintiffs-respondents Continued on page 14 0 Printed on recycled paper tember/October 2010 lume 42, Number 1

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