Monsanto Protection Act Sidesteps NEPA Injunctions

WASHINGTONThe "Monsanto Protection Act" has been lambasted as "an unprecedented attack on U.S. judicial review of agency actions" and an egregious "violation of the separation of powers."

Section 735 of a fiscal budget signed on March 26 by President Obama has ignited a firestorm of criticism, namely that it favors special interests like Monsanto Company and gives the executive branch the green light to disregard the judiciary.

Michele Simon, a public health lawyer, declares the provision "would require the U.S. Department of Agriculture [USDA] to essentially ignore any court ruling that would otherwise halt the planting of new genetically-engineered crops."

Others maintain Section 735's effect is less radical. "It does not give the USDA or the Secretary of Agriculture any additional authority he doesn't already have," Karen Batra, director of food and agriculture communications with the Biotechnology Industry Organization, said in a phone interview.

She interprets the provision as giving USDA authority to issue temporary permits to farmers to continue to plant or sell a genetically-modified crop notwithstanding a court injunction so long as the agency has found the crop is safe for the environment and health. The agency also has discretion to deny a temporary license, said Batra, relying on the final sentence in Section 735, which reaffirms "the Secretary's authority under section 411, 412 and 414 of the Plant Protection Act."

A spokesman for USDA said Agriculture Secretary Tom Vilsack "has asked the USDA Office of General Counsel to review this provision to determine if it is enforceable." Lawyers point out Section 735 is a "rider" that is only in effect through the duration of the appropriations law, which expires on Sept. 30, 2013. That may be little consolation to the Center for Food Safety, the non-profit group that has challenged decisions to deregulate genetically-modified crops.

"They've taken away the discretion of the secretary of agriculture," Andrew Kimbrell, executive director of the Center for Food Safety, told Capital Press. "It's real not-so-hidden purpose is to take away the ability to effectively vacate the approval of a crop that's been approved illegally."

Sidestepping NEPA-Related Injunctions

USDA's decisions to deregulate genetically-modified crops under the Plant Protection Act often are challenged on procedural grounds under the National Environmental Protection Act (NEPA). Signed by President Richard Nixon, NEPA requires federal agencies to consider potential environmental impacts before taking a major federal action.

In two well-known cases involving Monsanto's genetically-engineered crops, federal courts found NEPA violations, ordering removal from the ground of sugar beets and enjoining the planting of alfalfa. Both injunctions eventually were overturned on appeal. However, such injunctions can remain in effect while the cases go through the appeals process to the detriment of farmers and biotechnology companies like Monsanto Company, said John Dillard, an associate attorney with Olsson Frank Weeda Terman Matz PC, a Washington, D.C.-based law firm specializing in USDA law.

"With that in mind, Sec. 735 seeks to provide assurance to farmers that they will be able to harvest the crop that they have invested in. The provision provides that if the non-regulated status is challenged and a court grants an injunction against planting or ordering destruction of already-planted crops, USDA must, upon request, issue temporary permits or temporary deregulation that allows for continued cultivation and sale of the crops," Dillard wrote in an email. "Essentially, it circumvents any court order that prevents planting or harvest of a crop. This allows a farmer to harvest their crop and recoup their investment in seed. It does benefit GM seed companies because their customer base is not reluctant to purchase a crop for fear of not being able to harvest it."

Challenging USDA on Procedural Grounds

Greg Jaffe, director of the Project on Biotechnology with the Center for Science in the Public Interest (CSPI), said Section 735 relates to the Plant Protection Act, which gives USDA authority to regulate plant pests and noxious weeds. Certain genetically-engineered plants are presumed to be plant pests, although USDA has authority to deregulate such a crop.

According to some sources, court rulings invalidating USDA's decisions to deregulate genetically-modified crops have been based on procedural violations, not substantive findings under the Plant Protection Act.

"To date, no court has ever held that a biotechnology crop presents a risk to health, safety or the environment," Jon Entine, executive director of the Genetic Literacy Project, wrote in an article for Forbes. "But make no mistake: it's not because the courts or the government approval process is lax. Just the opposite. Getting approval of any transgenic crop or food is like running a tortuous gauntlet, both arduous and bureaucratic. Companies are required to provide years of internal and independent data, which are carefully reviewed by various government agencies."

Dillard points out the U.S. Food and Drug Administration (FDA) must approve a genetically-modified crop that is going to be consumed by humans while a crop that is resistant to insects must receive the green light from the Environmental Protection Agency (EPA).

Is Section 735 Consistent With Supreme Court Law?

Forget the "Monsanto Protection Act" for a moment. A 2010 Supreme Court decision, Monsanto Co. vs. Geertson Seed Farms, may already limit a federal court's power to enjoin use of genetically-modified crops based on a procedural violation such as failure to follow NEPA. In the 7 to 1 decision, the lower court was found to have abused its discretion by preventing USDA from partially deregulating alfalfa during the pendency of an environmental impact statement (EIS). The lower court found USDA had violated NEPA because it did not prepare an EIS but accepted the agency's findings that "Roundup Ready Alfalfa" didn't have any harmful health effects on humans or livestock.

After the lower court ruled on the NEPA issue, USDA proposed a judgment that would have ordered the agency to prepare an environmental impact statement yet let farmers continue to plant the alfalfa, subject to a number of restrictions. Instead, the court barred USDA from partially or fully deregulating alfalfa pending the completion of the EIS and prohibited nearly all future plantings of the crop.

Writing for the majority, Justice Samuel Alito said USDA should have been given the option to "pursue a partial deregulation" following the lower court's ruling that the agency's decision to completely deregulate Roundup Ready Alfalfa was "procedurally defective".  

"The Supreme Court's decision indicates that a court may vacate a federal agency's decision because of a NEPA violation, but the agency rather than the court should then determine what other action to take," Beatty & Wozniak, P.C., an energy and natural resources law firm, wrote in a 2010 newsletter.

How Broad is Remedy For Farmers?

Jaffe, a former trial attorney with the U.S. Department of Justice's Environmental and Natural Resources Division, doesn't believe Section 735 gives USDA any additional authority beyond what it already had. Still, he acknowledged it expressly provides farmers and growers the right to ask for a temporary license following an adverse court ruling. Farmer operators and producers also can ask for the same relief under the rider.

Finally, consider this scenario. A court rules that a deregulated, genetically-modified crop poses plant pest risks in violation of the Plant Protection Act. Does USDA have the authority or the obligation, upon a farmer's request, to disregard such a ruling and grant a temporary license?

"The agency can't go and violate the law," Jaffe said. "The balance of power says they have to comply with what the court requires them to do."