Supreme Court Case Could Affect Many GE Foods

April 14, 2010

The Supreme Court is scheduled on April 27, 2010, to hear oral arguments for a case that could have substantial impacts on the future of genetically engineered (GE) foods.

The case, known as Monsanto Co. v. Geertson Seed Farms, focuses on genetically engineered alfalfa. One of the concerns of several nonprofit organizations and farmers (including Idaho alfalfa farmer Phil Geertson) who filed the initial suit is that GE alfalfa can cross-contaminate non-GE alfalfa. Such contamination would render any organic alfalfa noncompliant with federal standards, and preclude export of conventional or organic alfalfa to the many countries that forbid GE alfalfa. As part of their initial legal challenge, they said that the US Dept. of Agriculture conducted an insufficient evaluation of environmental impacts when it approved GE alfalfa in 2005.

There have already been several court decisions. As part of the latest, in June 2009, the court upheld an earlier ruling that there had been a violation of the National Environmental Policy Act, and required USDA to do a full Environmental Impact Statement (which had never been completed for any GE crop). The court also upheld an injunction that had been in place since March 2007 that precludes further planting of GE alfalfa until the EIS is finalized. Monsanto and others again challenged the injunction in October 2009 (but not the EIS requirement), and the Supreme Court agreed on Jan. 15, 2010, to hear the case.

The Supreme Court ruling, which likely will occur by June 2010, might be narrowly constrained, addressing just one or more of the technical procedural issues it notes in its "Questions Presented" summary of the case, or it could have major implications for many GE crops if it is a broader verdict of some kind.

The percentage of GE crop acreage is already very high for many major US crops, such as soybeans (91% of all soybeans), sugar beets (more than 90%), cotton (88%), and corn (85%), according to the Monsanto petition to the Supreme Court. Alfalfa is the fourth largest crop in the US (behind corn, wheat, and soybeans); only 1% of the acreage is GE alfalfa at this point. There are many challenges from various interest groups regarding the health and environmental impacts of these and other GE foods. There also is a growing body of science that is finding health and environmental problems linked with GE foods and some of the products used in conjunction with them, such as pesticides.

For a variety of perspectives on the case, and additional sources for comment as it moves forward, check out:

Two of the justices have ties to the case that are affecting, or could affect, their participation, according to the Center for Food Safety: Stephen Breyer has recused himself because his brother, Ninth Circuit Court Judge Charles Breyer, heard the case earlier, and Clarence Thomas, a staff attorney at Monsanto for several years in the 1970s, has not recused himself.

If there is a 4-4 tie in the Court's ruling, the injunction would stay in place, since that is what the court ruling being appealed dictates.

As the court proceedings advance, USDA continues to prepare its EIS. The draft released in December 2009 is again concluding — like the agency's 2005 Environmental Assessment — that GE alfalfa poses no significant risk to the environment. The agency has received comments from more than 100,000 people, according to spokesman Mike Pina (301-734-7253), which officials are reviewing. There is no time frame yet for a final EIS. If the same finding of no impact holds, the agency would not impose any conditions on planting of GE alfalfa, Pina says. That could preclude the adoption of a handful of conditions that have been proposed as part of court proceedings to date.

USDA is also in the midst of preparing a draft EIS for GE sugar beets. A court hearing in July 2010 may influence the scope and timing of that document. A draft EIS for creeping bentgrass that has been in process for many years is still under way.