Monsanto's Deregulated Alfalfa Ducks Lawsuit

Date:05-22-2013

Deregulating Monsanto's herbicide-resistant variety of alfalfa did not violate any environmental laws, the 9th Circuit ruled.

Monsanto's Roundup Ready alfalfa is genetically engineered to be resistant to the company's herbicide Roundup.

Affirming the ruling of a federal judge, the San Francisco-based court said that the Animal Plant and Health Inspection Service (APHIS) does not have authority to regulate the plant because it correctly concluded that it does not qualify as parasitic under the Plant Protection Act.

In a hearing last year, attorneys for farmers and environmental groups argued that the service's January 2011 decision granting Monsanto unconditional permits to plant the alfalfa had violated a host of environmental laws, including National Environmental Policy Act (NEPA) and the Plant Protection Act (PPA).

The 9th Circuit rejected their claim that the lower court had interpreted the PPA too narrowly.

"The plaintiffs' logic is a stretch because it fails to deal with the language of the statute defining plant pest harm as injury, disease, or damage to other plants," Judge Mary Schroeder wrote for the panel. "RRA [Roundup Ready alfalfa] is thus no more likely to injure or damage other plants than is conventional,
nonmodified alfalfa."

"We do not suggest that the genetic engineering is without possible economic consequences. APHIS's final EIS [environmental impact statement] noted that transgenic contamination could economically hurt farmers who raise conventional alfalfa and market their crop as organic," she added. "The contamination of conventional alfalfa with the glyphosate-resistant gene could close foreign markets to U.S.-grown alfalfa. It could also force farmers of conventional alfalfa to incur additional costs testing and certifying that their alfalfa is not contaminated with the glyphosate-resistant gene. These concerns, however, are not the result of plant pest harms as defined under the PPA. APHIS thus has no power to regulate the adverse economic effects that could follow RRA's deregulation."

The groups had also challenged the District Court's determination that the agency did not violate the PPA by failing to consider whether Roundup Ready alfalfa counts as a "noxious weed," but the panel, which also included Judge N. Randy Smith and Judge Sidney Thomas, found the lower court had ruled correctly.

"Because no party petitioned APHIS to list RRA as a noxious weed, the agency did not violate the PPA by not evaluating RRA's noxious weed properties when it deregulated RRA," Schroeder wrote. "The District Court thus correctly ruled that APHIS did not violate the PPA by not considering, sua sponte, whether RRA was a noxious weed."