NPR is running a story on a recent decision in the Federal Court regarding sugar beets. Apparently, next year, beet farmers will have to go back to conventional beets, rather than the “Round Up Ready” beets that have taken over the market. For those of you not quite as obsessed with food as I am, “Round up ready” crops are crops that have been genetically modified (by everybody’s favorite world dominating megalith, the Montsanto Corporation) to be resistant to the the company’s matching herbicide. So the farmer can dump the herbicide on the field, and kill everything but the crop. Much, much easier than weeding. From a “feed the world” perspective, this is pretty sweet. There are a couple of problems, however.
1. Plants have sex on the wind and the legs of bugs. They share genetic material. It’s pretty hard to protect your patent on pollen, although that’s pretty much what Montsanto has done. If you are an organic/non-gmo farmer, and you’re next door to a Round Up Ready farmer, chances are your plants are going to cross pollinate. Then you can get slammed on both sides: if the seeds you save for planting the next year test as GMO, you can lose your certification as organic AND be subject to suit by Montsanto for “stealing” their patented gene.
2. Some environmentalists accuse Monsanto of creating the Round-up Ready crops just to sell round up. This particular accusation doesn’t make a whole lot of sense. . . I mean, of course they’re trying to sell their product. Welcome to America. The weird thing is that there doesn’t seem to be much competition. IP and Anti-trust are definitely not my area, but if this decision banning the round up ready beet is really impacting sugar beet farming on such a national level, doesn’t that imply just a smidge of a monopoly?
Anyway. I read the decision, which came down on August 13th in the Northern District of CA. Some of the fun stuff here gets into administrative law issues. (Ready? Here come the acronyms.) Apparently the United States Department of Agriculture (USDA) went ahead and approved the use of Round-Up Ready Sugar Beets without preparing an Environmental Impact Statement (EIS) a few years ago. Last September, the court found this to be in violation of the National Environmental Policy Act (NEPA).* Basically a no-no, although we could get into a long discussion about agency discretion and procedures and whether an EIS was necessary. But that would make this a very long blog.**
The recent decision actually takes things a step further and vacates (legal speak for “shuts down”) the decision that deregulated the Round Up Ready Sugar Beet. English Translation: No Round Ready Sugar Beets are to be planted at this time. The judge did not issue a permanent injunction – so if the USDA and Co. manage to produce a decent EIS, the beets could go back on the market, but that is likely to take some time – possibly years.
There is some great language in the opinion, especially given that some Round Up Ready crops, like corn, have been on the market for years. The Judge gives a lot of weight to the Plaintiff’s showing of environmental harms that could result from using the Round Up Ready seeds. I’m curious as to what they presented. Judge White also says that economic impacts are not necessarily under consideration with respect to environmental law compliance. (Heresey! Sacrilage! Call Sarah Palin and HUAC!) Finally, for the entertainment of anyone who has had the argument about whether the additional requirements of NEPA are just time wasting formalities, Judge White comments: “APHIS’s apparent position that it is merely a matter of time before they reinstate the same deregulation decision, or a modified version of this decision, and thus apparent perception that that conducting the requisite comprehensive review is a mere formality, causes some concern that Defendants are not taking this process seriously.”
It’s a fun opinion – and it’s only 12 pages long. Worth reading:
Center for Food Safety v. Vilsack, 2010 U.S. Dist. Lexis 92369
Finally, if you’re interested in the food part of this subject, but not so much into admin law and acronyms, I recommend King Corn for a little background. It’s an interesting documentary about a couple of city boys who rent an acre of land in corn country and try to grow a crop. They present multiple sides of the issue with out being nasty to anybody, and it’s not only fascinating, but really entertaining.
So, what happens next? Round Up, similar to some computer products I could name, requires a whole different set up equipment to use, so a lot of farmers who’ve already bought seeds and equipment for the year are in a bind. While I haven’t got a whole lot of sympathy for Montsanto’s “economic problems” in this situation, you have to feel for the farmers. With respect to sugar beets, the big question is what the EIS will say, and how fast it will come out. In spite of Judge White’s comment, I can’t help but think it’s likely that in the end, the beets will pass muster.
On the other hand, hopefully this case will add to the growing awareness, not just in society in general, but in the legal realm, of food safety and regulation.
*Admin. law tends to lend itself to long, involved sentences full of acronyms and cryptic titles. Has anyone else noticed this?
**We can do it later, if you want. I will say, with my admittedly enviro-whacko leaning bias, that given the previously mentioned plant-wind-sex, you can’t really introduce a new species of plant without it having a fairly serious biological impact.