Breaking News: Supreme Court Kicks Critical Genetically Modified Alfalfa Issue Down The Road

A high-profile legal battle over genetically modified crops continues. The US Supreme Court in a 7-1 decision yesterday (June 21) did not accept a lower court’s total nationwide ban on GM alfalfa. But it did agree that the seeds could be dangerous and did not allow Monsanto to proceed with selling them. The US Department of Agriculture (USDA) must now complete a study examining whether the seeds will harm the environment before approving them for restricted planting, a process that could go into next year, and which could lead to more litigation.

Why is this such an important issue?
Alfalfa, the fourth most widely grown crop in the US, is fed to dairy cows. Our friends at Center for Food Safety (CFS), on behalf of organic farmers, sued to ban the GM alfalfa out of the very real concern that it would spread uncontrollably and take over US pasturelands. When we wrote about this court case in May, we noted that GM foods cause sterility in hamsters, and that the real long-term risks to human health from these foreign molecules are still unknown. True organic beef and dairy products would become an impossibility since all cows would be potentially exposed to the GM alfalfa.
Some quick background
Monsanto is a multinational agricultural biotechnology company based in Missouri. It is also the leading producer of genetically modified seed, and sells 90% of the US’s GM seeds. Its development and marketing of GM seed and bovine growth hormone, as well as its aggressive litigation, political lobbying practices, seed commercialization practices, and “strong-arming” of the seed industry and especially of farmers have given the company the nickname “the evil empire” in many quarters. In ANH’s opinion, this nickname is well deserved.
Monsanto is the world’s leading producer of the extremely toxic herbicide glyphosate, marketed as Roundup™. Several weed species, known as superweeds, have developed Roundup resistance largely because of repeated exposure. So Monsanto has created genetically engineered crops—soy, corn, canola, cotton, and alfalfa (with wheat currently in development)—which tolerate the herbicide; they are known as Roundup Ready® crops. Alfalfa is different from the others because it will spread and propagate itself without replanting.
The court case
In 2007, a federal district judge found that the USDA had failed to consider the environmental impact before it had approved the GM alfalfa seeds for commercial planting. He then canceled the USDA’s approval of the seeds, and imposed a national ban on planting them. But the Supreme Court, in yesterday’s 7-to-1 decision, found that the lower court judge had gone too far. The blanket ban prevented the USDA from considering a partial approval of the seeds, a process known as deregulation.
Monsanto cheered the ruling and got its version of events into many major media stories. However, the Supreme Court left in place the lower trial court’s ruling barring the USDA from deregulating Roundup Ready alfalfa, and sent the case back down to the lower courts for further proceedings. What this means, as a practical matter, is that the USDA will have to complete the Environmental Impact Statement (EIS) process, including considering more than 200,000 public comments it has received since issuing a draft EIS in December of 2009.
“It should be no surprise that Monsanto’s PR machine is working hard to spin the truth about the decision,” according to Andrew Kimbrell, executive director of the Center for Food Safety. “Despite what the biotech seed giant is claiming, today’s ruling isn’t close to the victory they were hoping for…. While the Supreme Court ruled in favor of Monsanto by reversing an injunction that was part of the lower court’s decision, more importantly, it also ruled that the ban on GMO alfalfa remains intact, and that the planting and sale of GMO alfalfa remains illegal.”
“This point, which seems to be lost in some news reports, is actually a huge victory,” Kimbrell continued. “The Supreme Court ruled that an injunction against planting was unnecessary since, under lower courts’ rulings, Roundup Ready alfalfa had become a regulated item and was therefore illegal to plant. In other words, the injunction was ‘overkill’ because our [earlier] victory in lower federal court determined that USDA violated the National Environmental Policy Act and other environmental laws when it approved Roundup Ready alfalfa. The court felt that voiding the USDA’s decision to make the crop legally available for sale was enough.”
The L.A. Times quoted Paul Achitoff, a lawyer for Earthjustice, as saying, “To the extent that Monsanto is claiming this a victory, it’s a very hollow one since no one can plant their crops.”