A Northern California federal district court judge has issued a permanent injunction prohibiting the sale of Roundup Ready alfalfa seed until the federal government prepares an Environmental Impact Statement (EIS), a bureaucratic process that could take up to two years.
The ruling brings to a screeching halt what was the most rapid acceptance of agricultural biotechnology since genetically modified crops were introduced more than 10 years ago.
In the meantime, farmers can continue to grow and harvest 200,000 acres of the herbicide-resistant alfalfa hay already planted. Most of this acreage is among California's 1.1 million acres of alfalfa stands.
But, the judge has ordered Forage Genetics to make public on the internet the location of all Roundup Ready alfalfa seed and forage fields.
Judge Charles E. Breyer also ordered that harvesting equipment used for Roundup Ready alfalfa be cleaned after harvesting the hay and that all Roundup Ready alfalfa hay to be identified as transgenic.
The court injunction is one of the most onerous decisions rendered against American agriculture and, if left to stand, could stymie continued growth of transgenic crops in the U.S.
The ruling has sent shock waves through agriculture and halted the planting of Roundup Ready alfalfa, which had been projected to total more than a million acres by 2008, a five-fold increase over what has been planted in the past 12 months.
The judge said the economic damage his ruling would cause farmers, Monsanto, and Forage genetics “does not outweigh the potential, irreparable damage to the environment.”
He said the expansion of the Roundup Ready alfalfa market without an EIS is “unprecedented,” even though an EIS was not required for any of the other transgenic crops — cotton, corn, soybeans and canola — now approved by a host of government agencies marketed by seed companies in the U.S. and around the world.
Monsanto intervened in the case after the preliminary injunction was issued earlier this spring halting Roundup Ready alfalfa seed sales The company was “hopeful that a reasoned approach in this matter” would “answer questions about the regulatory approval process for Roundup Ready alfalfa.” Hopes were dashed with Breyer's early May ruling that the APHIS did not take a “hard look,” as outlined in the National Environmental Protection Act.
“We support the farmer's right to choose biotechnology, organic, or conventional crops, with the proper stewardship practices that make co-existence feasible,” says Jerry Steiner, executive vice president for Monsanto. “We have heard from farmers across the country who are disappointed they cannot access this technology.”
Monsanto has not announced whether it will appeal the decision that could set a far-reaching precedent, possibly derailing the future development of agricultural biotechnology.
Prominent Tulare County, Calif., farmer and dairyman Mark Watte intervened in the case after the preliminary injunction was issued and called the lawsuit “a sham by the same environmental groups that want to stop any application of new technology in agriculture.”
Many believe the injunction, if left to stand, could make Watte's prediction come true, even though transgenic crops are now grown on 222 million acres in 21 countries, an 11 percent jump in one year. The U.S. has about 123 million of biotech crops. That compares to 4.3 million acres in six countries when biotech crops were first introduced commercially in 1996.
It is the first time a court has ordered an EIS for a transgenic crop.
A spokesman for Monsanto said a history of 12 years of successful, safe transgenic crop production worldwide should preclude any similar EIS legal challenge to crops now under cultivation. However, “I could not begin to speculate what the Center for Food Safety might do,” said the spokesman.
The Center for Food Safety (CFS) was one of a half dozen co-plaintiffs in the lawsuit. CFS is headed by Andrew Kimbrell, who was mentored by Jeremy Rifkin, perhaps America's most notorious anti-technologist. CFS often participates in food scare projects managed by Fenton Communications, a Washington, D.C., public relations firm often used by anti-industry activists.
The two farm plaintiffs in the lawsuits are Geertson Seed Farms, Adrian, Ore., and Trask Family Seeds, Elm Springs, S.D. Trask, which grows about 20,000 acres of conventional, common alfalfa, tried to get the South Dakota legislature to ban biotech crops, but the state's legislators rejected the ban.
Geertson is associated with Green Genes, Inc., an alfalfa breeding company located in Minnesota. The majority of the alfalfa varieties Geertson markets are genetically modified to offer various resistance levels to alfalfa diseases and insect pests.
Will Rostov, senior attorney for CFS, called the permanent injunction “a great victory for the environment. Roundup Ready alfalfa poses threats to farmers, our export markets and to the environment.”
There are no export market bans of U.S. Roundup Ready alfalfa hay and, aside from the California federal court ruling, it is still legal to plant Roundup Ready in many countries of the world — except, now, in the U.S.
The judge rejected APHIS' determination that introduction of the Roundup Ready gene into alfalfa is harmless to humans and livestock, neither toxic nor pathogenic.
He said that the contamination of conventional and organic alfalfa with the Roundup Ready gene is itself an “impact that is harmful to the human environment.”
This, despite the fact there has been no documented evidence that biotechnology crops have ever harmed the environment or people. Recently the International Council of Science, an organization of 111 national academies of science and 29 scientific unions concluded “currently available genetically modified foods are safe to eat” and that “there is no evidence of any deleterious environmental effects having occurred from the trait/species combinations currently available.”
A week before the California federal district court judge issued his decision, a Canadian appeals court dismissed an appeal by an organic activist group for a class action lawsuit against Roundup Ready canola on much the same grounds as the lawsuit filed by the radical American groups.
“Food and feed products containing ingredients derived from plant biotechnology crops have a solid 10-year history of safe use, and all current Roundup Ready crops available in the marketplace…met or exceeded Canadian federal regulatory guidelines for food, feed and environmental release. The court made special mention of this in its judgment,” said Trish Jordan, Monsanto Canada spokesperson.
In filing paperwork to intervene, Monsanto and Forage genetics provided numerous expert declarations detailing how Roundup Ready alfalfa can be grown in successful co-existence with conventional or organic crops.
“The stewardship requirements proposed by USDA for isolation distances, harvesting, storage, and cleanup practices are based upon scientific evidence and eliminate any ‘likelihood of substantial and immediate irreparable injury’ to conventional or organic growers,” according to court papers filed by Monsanto in March.
According to the company, since field trials began in 1998, Roundup Ready alfalfa has been reviewed by three separate federal agencies — the U.S. Food and Drug Administration, the U.S.
Environmental Protection Agency, and the U.S. Department of Agriculture and “has met every safety prerequisite for commercial use.”
Already, USDA imposes a 1,500-foot isolation of Roundup Ready alfalfa seed produced with leafcutter bees, nearly double the distance for foundation seed production. The isolation is three miles for seed produced with honeybees, 17 times what is required for foundation seed.