Faced with another government agency’s failure to follow the laws, advocate groups had to resort to the courts yet again, making the judicial system the last stopgap for even the most sensible environmental policy, like that of protecting and preserving the nation’s wildlife refuge areas.
On August 11, 2011, the Public Employees for Environmental Responsibility (PEER), Center for Food Safety (CFS) and Beyond Pesticides filed a lawsuit against U.S. Department of Interior and its sub-agency, Fish and Wildlife Services (FWS). The lawsuit seeks to halt the planting of genetically engineered crops on twenty-five national wild life refuges, planted there since at least 2006, until the defendant agencies satisfy their statutory and regulatory obligations.
This is the third in a series of lawsuits filed by CFS and PEER challenging FWS’s practice of permitting GE crops on wildlife refuges. In 2009 and 2010, the groups successfully challenged approval of GE plantings on two wildlife refuges in Delaware – Prime Hook and Bombay Hook National Wildlife Refuges – which forced FWS to end GMO planting in the entire 12-state Northeastern region.
National wildlife refuges have allowed farming for decades but in recent years refuge farming has been converted to GE crops. Today, the vast majority of crops grown on refuges are genetically engineered. Paige Tomaselli, the lead attorney for refuge litigation for CFS, explained to me that FWS often justifies its decision to permit GE crop planting because that is the only seed farmers can obtain. The agency also claims that a prohibition on GE planting may lead to the shutting down of a refuge since FWS uses the money from cooperative agreements with farmers to manage the refuges.
According to Tomaselli, however, FWS policy forbids GE crops in refuge management unless it is determined that their use is essential to accomplishing refuge purpose.
One wonders if the mission of the national wildlife refuge system includes to “conserve, protect, and enhance fish, wildlife, and plants and their habitats for the continuing benefit of the American people,” how can planting of GMOs be consistent with it? Numerous independent studies have demonstrated that the planting of GMOs, particularly glyphosate tolerant varieties, contributes to an increase in pesticide use in general and more toxic pesticides in particular and the emergence of glyphosate resistant weeds. More recently, information questioning the safety of glyphosate on human and animal health has emerged, further casting doubt about the prudence of FWS’ decision to let farmers grow GMOs on the nation’s refuges. Growing GMOs may also contradict the FWS’s policy of preserving and protecting the nation’s resources as there are increasing concerns regarding the adverse impact of GMOs on insects (such as bees, for example), nematodes, and birds, all of whom either consume GM seeds or their by-products or are present in glyphosate saturated soils. Bill Freese, the science policy analyst for CFS further explained to me the impact of glyphosate on the environment as follows:
Roundup is quite toxic to many amphibians at low, field-relevant usage rates (at 1 to several ppm), and with usage skyrocketing (the EPA recently reported that 180-185 million lbs. of glyphosate were used in the US in 2007), it’s possible that glyphosate formulations are implicated in amphibian decline. Glyphosate can also induce sterility in native plants at usage rates far below that required to kill the plant — and drift to native plants (and neighbors’ fields) is common when glyphosate is sprayed in windy conditions. … we’re [also] set for a big comeback of 2,4-D, dicamba and other more toxic herbicides as the false “solution” to glyphosate-resistant weeds. Both (particularly dicamba) have volatility issues that lead to problems similar to glyphosate drift. Damage to neighboring crops and wild plants.
Interestingly, organic crops are rarely planted on the nation’s refuges because, as Tomaselli informed me, according to FWS, there are not enough farmers to grow them.
According to the complaint, agency officials failed to complete a Compatibility Determination for each genetically engineered crop at each refuge as is required under the National Wildlife Refuge System Administration Act (NWRSAA). The compatibility determination is an analysis performed to determine whether the proposed use of the refuge will not materially interfere with the fulfillment of the mission of National Wildlife Refuge System or the purpose of the refuge. Additionally, the agency failed to prepare an Environmental Impact Statement (EIS) concerning the use of GE crops at each refuge and never provided the adequate notice or an opportunity for public comment contrary to requirements of the National Environmental Policy Act (NEPA). Under NEPA, federal agencies that take major Federal action that significantly affects the quality of the human environment must conduct an EIS.
“Currently, the use of GE crops on refuge lands” in Region 4 (consisting of AL, AR, GA, KY, LA, NC, SC and TN), “is at an all-time high, with sixty-nine percent of refuge agricultural lands in Region 4 currently growing GE crops.” The problem of GE crop planting on refuges is that:
[GMO use] is a significant change from using conventional crops. Their use is a highly controversial issue in the scientific community and has many harmful and uncertain consequences to the health and quality of the human environment. For example, GE crops may harm beneficial insects, increase weeds, alter soil ecology, and contaminate non-genetically engineered plants.
Plaintiffs also charge that FWS was fully aware of the potential risks of using GE crops on the quality of the human environment. Specifically, plaintiffs point out that FWS has acknowledged in the agency’s internal documents that: “Potential risks of [genetically modified crops] include gene-flow, non-target effects, pest resistance and increased use of certain pesticides.” Despite these known risks, the FWS, claimed plaintiffs, failed to conduct an analysis required by law.
“Allowing pesticide promoting and pesticide producing GE crops is harmful to wildlife and the delicate refuge ecosystem,” explained Tomaselli in an email to me. Currently, CFS is evaluating whether the environmental assessment prepared by FWS in the Midwest and Mountain Prairie was adequate to determine if a lawsuit in those regions is also warranted.