A Mixed Decision From the U.S. Supreme Court on GE Alfalfa

Square bales of alfalfa in a Montana field. Photo by Gary D. Robson.

Square bales of alfalfa in a Montana field. Photo by Gary D. Robson.

On June 21, 2010 the United States Supreme Court handed down its first ever decision concerning genetically modified crops. The case was appealed by Monsanto to the highest court after a California District Court issued, and an Appeals Court affirmed, relief that banned the planting of genetically modified alfalfa (“GM Alfalfa” a.k.a. “Roundup Ready Alfalfa” or “RRA”) until the USDA’s Animal and Plant Inspection Services (”APHIS”) fully analyzed the impacts of these crops on the environment, farmers and the public in an Environmental Impact Statement (“EIS”). Roundup Ready Alfalfa is genetically engineered to be resistance to glyphosate, the active ingredient in Monsanto’s best selling herbicide, Roundup.

Specifically, in 2006 the District Court found that the federal agency’s failure to conduct an EIS was a violation of the National Environmental Policy Act of 1969 (“NEPA”) and to remedy the violation, the District Court ordered three pronged relief. First, the District Court vacated APHIS’ decision completely deregulating RRA.  Second, it enjoined APHIS from deregulating RRA, in whole or in part, pending completion of the mandated EIS.  This partial injunction prevented APHIS from performing “partial deregulation” of RRA which would have allowed limited or conditional planting, while the Agency prepared the final EIS. Finally, the District Court also entered a permanent nationwide injunction prohibiting almost all future planting of RRA.

In a 7-1 vote, the Supreme Court ruled in favor of Monsanto by reversing an injunction that was part of the lower court’s decision. Writing for the majority, Justice Alito found that the District Court overstepped its powers by enjoining APHIS from allowing continued planting and harvesting in the interim period while the agency was preparing an EIS. “The district court barred the agency from pursuing any deregulation — no matter how limited the geographic area in which planting of RRA would be allowed.”

Biotech companies like Monsanto began celebrating the minute the Supreme Court released the decision.

Despite the rosy (and misleading) PR postings hitting the news wire from biotech companies, however, the Supreme Court’s decision is still a significant victory for farmers, consumers and environmental groups. The High Court affirmed the lower court’s determination which vacated APHIS’ deregulation order. In essence, this keeps RRA as a regulated article and therefore illegal to plant. And while the Justices did declare that the USDA has a legal right, if the agency so chose, to preliminary approve GE alfalfa seed (i.e. deregulate alfalfa seeds for limited or conditional sale and planting), the Supreme Court decision does not, by itself, permit biotech companies to resume the sale of RRA seeds.  And as Andrew Kimbrell, the Executive Director of the Center for Food Safety, stated in his The Huffington Post article, “[t]he bottom line: the ban on planting Roundup Ready Alfalfa still stands.”  He further wrote:

The Center for Food Safety also declared the case a victory in other aspects: most importantly, the High Court did not rule on several arguments presented by Monsanto about the application of federal environmental law. As a result, the Court did not make any ruling that could have been hurtful to National Environmental Policy Act or any other environmental laws. In addition, the Court opinion supported the Center’s argument that gene flow is a serious environmental and economic threat. This means that genetic contamination from GMOs can still be considered harm under the law, both from an environmental and economic perspective.

The Supreme Court’s ruling could affect a similar case, also brought by the Center for Food Safety, involving Roundup Ready sugar beets.  Furthermore, the Supreme Court’s decision spurred Congressman Dennis Kucinich to issue an announcement that he intends to introduce three bills that “will provide a comprehensive regulatory framework for all Genetically Engineered (GE) plants, animals, bacteria, and other organisms.”