Making Hay is as Messy as Making Sausages: Deregulating GE Alfalfa

By Phil Bereano

Phil Bereano is a co-founder of AGRA Watch and also of the
Washington Biotechnology Action Council; he has been active on issues of
biotech policy since the early 1980s, locally, nationally and
internationally.

At the end of January, the Animal and Plant Health Inspection Service (APHIS) unit of the US Department of Agriculture announced that it would fully deregulate the planting of GE alfalfa, despite its Environmental Impact Statement (EIS) conclusion that such a course of action might lead to genetic contamination. To many observers, this appears to be in direct contravention to its obligations under law and court decisions.

In response to a law suit brought by the Center for Food Safety, a 2007 trial judge found that the Department had not done a proper EIS; included was a finding that alfalfa farmers had established a reasonable probability that their conventional alfalfa crops would be contaminated with the engineered Roundup Ready gene  if USDA were allowed to fully de-regulate GE alfalfa. The decision recognized that the substantial risk of such contamination was damage which would support a legal action, and the judge issued an order prohibiting the planting or deregulation of genetically engineered alfalfa. It directed the USDA to do a complete EIS and to adopt a course of action which would minimize injuries. The Supreme Court in 2010 overturned the planting ban, but did not restore the Department’s approval of GE alfalfa; thus, planting was still not legally allowable.

Congress held two hearings in 2010, in which the agency was criticized for these failures, and over 200,000 citizen comments were filed, mostly objecting to the Department’s plans.

The Department’s final environmental review, issued on Dec. 23, 2010, again concludes, in effect, that there will be no substantial harm from biotech alfalfa!  As a part of this environmental impact analysis, USDA proposed three options for action: 1) No deregulation of GE alfalfa; 2) complete deregulation of GE alfalfa; or 3) partial deregulation of alfalfa with certain government mandated measures to segregate GE production from organic production.  Under NEPA the public is granted a 30-day period of public review, which ended in late January. It was clear that the Department would reject option (1), since no GE crops have been subjected to regulation.

Most critics believed that USDA would seek “partial de-regulation,” including mandatory conditions such as prohibiting the planting of GE alfalfa in certain parts of the country, and establishing buffer zones between GE and organic production sites. This would, in reality, allow contamination. And contamination has long been an industry-government strategy for forcing acceptance of GE. (As Emmy Simmons, assistant administrator of the U.S. Agency for International Development, said to me after the cameras stopped rolling on a vigorous debate we had on South Africa TV in 2002, “In four years, enough GE crops will have been planted in South Africa that the pollen will have contaminated the entire continent.”)

There is no such concept in US law as “partial de-regulation.”  Either the crop is regulated—according to an assessment in a full Environmental Impact Statement as ordered by the Court—or it is not.  As the agency itself notes, “The supplemental request that APHIS received from Monsanto/KWS did not clearly explain what the petitioners mean or envision by a ‘partial deregulation.’” In other words, this would have been a wholly ad-hoc and fictitious approach to fulfilling the agency’s regulatory responsibilities.

“Partial de-regulation “ is a faulty and misleading concept as regards the ecology of bioengineered plants.  It does not prevent any of the potential harms from GE crops but seems to suggest that on a small enough scale they are tolerable.  Tolerable to whom?  Small environmental perturbations can lead to large impacts.  In international meetings the US repeatedly says it supports “sound science” as the basis for regulation; the proceeding illustrates just how farcical such claims actually are, since there is no science supporting a notion of “partial de-regulation”.

Apparently this “partial” proposal ran into considerable opposition in Congress and from some farm groups and biotechnology companies.   Claiming that the introduction of restrictions based on economic consequences of pollen drift “politicizes the regulatory process and goes beyond your statutory authority,” Representative Frank D. Lucas, Republican of Oklahoma, the new GOP chair of the House Agriculture Committee wrote to Secretary Vilsack on Jan. 19, and held a hearing on the proposals the next day. The letter was co-signed by Republican Senators Saxby Chambliss of Georgia and Pat Roberts of Kansas.  Of course, an EIS is supposed to look at economic consequences of major federal actions, but it may be too much to expect these legislators to know what the law requires.  Instead, they argued against any restrictions since the Department’s environmental impact statement had concluded that growing GE alfalfa would be OK.  They seem to have won, at least for now.

Restricting the growing of alfalfa would undermine Washington’s repeated position at international meetings that GE is completely safe and would run counter to its efforts to pressure other countries to accept genetically modified crops. And the Obama White House is not going to alter its business-friendly policies—according to Maureen Dowd in the NY Times (Jan 30, 2011), chief advisor David Axelrod recently punned that everyone should “’plow forward’ on a plan for genetically produced alfalfa.”

The press has depicted the debate over GM alfalfa as biotech vs. organic but in reality organic is a small percentage of the alfalfa production segment that is threatened by the introduction of GM alfalfa (it is used as feed for cows whose milk is labeled “organic”). But conventional alfalfa is also threatened. Alfalfa seed companies have huge export markets to GMO-sensitive regions such as the EU, Middle East, and Asia, particularly Japan and they don’t want to jeopardize those markets. Two of the plaintiffs in the alfalfa suit are conventional alfalfa seed companies. Secretary Vilsack and the USDA have proposed a plan for the “coexistence” of GMOs alongside organic and conventional crops. Unfortunately this will result in genetic contamination.

The EIS inadequately assessed the likelihood of contamination injuries and the need for redress (if not, indeed, prevention). Over 200 past contamination episodes have cost farmers hundreds of millions of dollars in lost sales, not always compensated by crop developers.  (It is interesting to note that the 160 members of the Cartagena Biosafety Protocol—which does not include the US—agreed a few months ago to a treaty to redress such damages if they occur internationally.)

The EIS misrepresented the situation regarding the inevitable increase in herbicidal chemicals, perhaps up to 23 million pounds per year. And it ignored the likely increase in herbicide-resistant “superweeds,” already becoming an important US agricultural concern. It used a short-term and short-sighted approach.

Although the final EIS noted risks to organic and conventional farmers ( concerns surrounding purity and access to non-GE seed), the  decision still places the entire burden for preventing contamination on non-GE farmers, with no protections for food producers, consumers and exporters.   The USDA must take a more proactive role to ensure that these risks are minimalized and that they are not thrown on innocent third parties.  “We appreciate the measures that the Secretary has announced to explore ways to develop the science to protect organic and other non-GE alfalfa farmers from contamination.  However, to institute these measures after the GE alfalfa is deregulated defies commonsense,” said Michael Sligh, founding member of the National Organics Coalition. “Logically, efforts to develop the science of preventing GMO contamination should precede, not follow, any decision to deregulate GE crops.”

The underlying problem in this proceeding is that APHIS refuses to follow full risk assessment procedures established for GE food plants, such as those specified in the UN’s Codex Alimentarius (although the US was one of the 168 countries which approved their adoption at the meeting of the Codex Commission about a decade ago). Nor would it accord with the norms of the Cartagena Protocol on Biosafety (which the US has not adopted, but are followed by 170 other countries). Too often, APHIS has relied on information and analyses provided by the industry, as a rubber stamp, without any independent assessment of its own—an actual situation of industry “self-regulation” which has been repeatedly (in all areas of environmental and consumer concern) shown to be a farce.

There have been about 200 incidents of GE crops contaminating non-GE produce, resulting in hundreds of millions (if not billions) of dollars in damages; contamination is a real risk and one of very significant magnitude. Indeed, the trial court in the original lawsuit found that contamination by GE alfalfa has already occurred. Thus, the Department cannot dismiss it as insignificant or rest on Monsanto’s assurances that its practices render contamination unlikely. (Monsanto’s documented history of lying to governmental bodies and distorting evidence in submissions reduces its credibility to nil, anyway.)

APHIS must surely be aware that the US government’s definition of “organic” (by the USDA) contains no threshold for the presence of GE contamination. More than a quarter of a million commentators vigorously objected to the original version of the rule which would have allowed GE components in “organic” foods. APHIS must proceed in a manner which guarantees that contamination will not occur, even if this means denying permission to plant GE alfalfa.  Contamination by GE alfalfa violates the basic tort ideas of nuisance and trespass (although most farmers are not economically able to challenge a giant corporation such as Monsanto).

The Department suggests that consumers will forgive unintentional contamination, but intention is irrelevant to the National Organic Standards and to the protection of human health. Consumers have a legal right to demand that products live up to their labeling.  Additionally, the claim that consumers will forgive unintentional contamination is unsubstantiated.  Most surveys of US consumers indicate that they want to know that their food is free of any kind of contamination; further, most surveys point out the vast majority of US consumers do not want to have unlabeled GE food in their grocery stores.
The Center for Food Safety is re-commencing the litigation.  Hopefully, the court will enjoin any planting this spring, so that contamination doesn’t lead to a fait accompli and the insidious presence of more GE in our food supply—untested for its effects on human health and the environment.

An official submission to the USDA by Chuck Noble, an alfalfa grower near Bellevue, WA, makes these points:

“Conventional and GE alfalfa coexistence is not possible or practical. Some reasons:
1. The USDA should realize that not all crops can coexist nor should all crops be genetically engineered.
2. A monopoly is growing in the seed industry which is threatening to destroy independent seed producers.
3. Technologically, perennial crops – alfalfa and grasses – should not be genetically engineered because they cannot be kept in the fence. Human-inserted genes must be controlled.
4. 230,000 negative comments were received on the 2009 Draft EIS.
5. Approximately 100,000 acres of GE alfalfa were planted in two years out of over 20 million acres of conventional alfalfa. Most of the GE acres have been taken out.
6. GE alfalfa takes 20% more seed to establish the same stand as conventional alfalfa.
7. The GE gene does not add nutrition and the herbicide on the plants does not have nutrition.
8. Many of us use Roundup to kill alfalfa stands in crop rotations. GE alfalfa will be a weed not easily killed in other crops being grown.
9. GE alfalfa seed is becoming costly to keep out of conventional seed lots. Accurate tests and hygiene, clean combines, cleaners, and isolated fields are all issues. Since the Magna Carta, 1215 AD, we have the right to grow our crops without being trespassed by man-caused genes.
10. To allow GE alfalfa to be grown for a small number of people who want to plant into their weed patches is poor reasoning. The majority of growers timely suppress weeds and use crop rotation management wisely.
11. Coexistence of GE alfalfa is not possible without wrecking the conventional alfalfa and seed industry and causing further monopoly.
12. Up to half of USA seed production comes from alfalfa second growth such as I grow.
13. GE alfalfa will add costs to all producers and consumers. The benefit goes to the monopoly patent holder as we get further and further contaminated.
14. Genetically engineered effects are very difficult to back out of a perennial crop such as alfalfa and must not be allowed.

I have worked hard on this issue for five years. I was at the USDA-APHIS meeting in Colorado in October 2007, representing the 100,000’s of growers against the contaminating trends of Monsanto’s GE alfalfa. I was raised on a western South Dakota farm, have a science education and raise alfalfa hay and grass for dairy buyers and other buyers. I sell alfalfa seed from second-growth alfalfa and our operation also supports honey bee production, which too is adversely affected by GE alfalfa.”