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

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lume 42, Number 1

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