The case is Monsanto v. Geertson and I am not the first person to address it here on Daily Kos.  Monsanto brought suit against an injunction placed on the use of GMO alfalfa.  While the case does not directly address Genetically Modified foods, it could affect the government's ability to regulate them.  This diary is a partial re-post of an earlier diary that I wrote last week.

GMO Alfalfa from MONSANTO is to be approved by US Dept of Agriculture

    The case involves the use of Roundup Ready Alfalfa (RRA) seeds, for which Monsanto maintains a patent.  For those of you who aren't familiar with Roundup ready crops, they are designed to be resistant to glyphosphate, the active ingredient in Monsanto's Roundup herbicide.  An herbicide is a chemical designed to kill plants, used to kill weeds.  The idea behind Roundup ready plants is that the whole field can be sprayed and only the weeds will die.  I am not trying to make a case for or against herbicides and their use.  Herbicides have their place, just not in organic agriculture.

    And now for some background on the case.  The USDA's Animal and Plant Health Inspection Service deregulated Roundup Ready Alfalfa in 2005.  The deregulation is known as a Finding of No Significant Impact and was made without releasing an environmental impact statement, which some environmental groups claim is a violation of federal law.  With the finding, the USDA removed all limits on planting and sale of Roundup Ready alfalfa seeds.  The bone of contention in the case is the lack of an environmental impact survey, not the use of the GMOs themselves.

    Geertson Seeds Farms of Idaho, along with The Center for Food Safety and a group of conventional and organic farmers, filed suit in District Court against the government citing violations of the National Environmental Policy Act, the Endangered Species Act, ant the Plant Protection Act.  That court issued a permanent injunction prohibiting the sale of Roundup ready alfalfa until the Animal and Plant Inspection Service prepared and Environmental Impact Statement.  The arguments before the court focused on the repeal of that ruling.

    Why did Geertson bring the original suit?  The major concern of the parties who sought the injunction is the issue of cross-fertilization.  Previously, up to 60% of US alfalfa, grown as animal feed, was exported.  Foreign sales of alfalfa declined by as much as half because many countries have ban on the use of GM crops.   In many cases, a zone of several miles is required between GM crops and and conventional or organic ones.  Geertson claims this doesn't work with alfalfa which has sprouted wildly along roadsides.  Another concern is pollinating bees.  It is believed that they carry pollen from GM crops to conventional fields which is a problem for organic farmers.  These claims were made by >Phil Geertson in an interview with The Oregonian.

    Why did Monsanto bring the suit to the Supreme Court?  According to their lawyers, they are protecting the rights of farmers to purchase and plant GMO crops.  They believe that there should be a scientific likelihood of a plaintiff's claim being upheld in order for that plaintiff to bring an injunction.  Several other businesses have filed amicus briefs that say that the Court should make clear once and for all that a court must find likely irreparable harm before issuing an injunction.

from a New York Times article by Gabriel Nelson

Michael Senatore, vice president of conservation law at Defenders of Wildlife, said his organization has not been involved in the issue of modified crops but wanted to weigh in because of the case’s potential impact on environmental litigation.

"It is a NEPA case, and NEPA has fared exceedingly poorly in the Supreme Court — I think it’s 0-for-13," Senatore said. If the organic farmers lose, he added, "we could get another adverse NEPA ruling that could have implications for the work that we do."

    How is this case likely to affect US food policy?  The issue here is that the case might raise or lower the threshold for bringing legal challenges under the National Environmental Protection Act. The Supreme Court case hinges on Monsanto’s claim that organic farmers did not demonstrate a "likelihood of irreparable harm."  Alison Peck, a law professor at West Virginia University, said it is unclear whether the justices will use the Monsanto case to further refine the test for environmental injunctions or delve more deeply into issues distinct to genetically modified crops.

"It is entirely possible that the court will consider the contamination-as-environmental-harm ruling when it determines whether there is a ‘likelihood of irreparable harm,’" Peck said. "Every word in that phrase could be a vehicle for revisiting the scope of the district court’s holding that biotech contamination is within the scope of NEPA."

Originally posted to Salted and Cured on Tue May 04, 2010 at 01:49 PM PDT.

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