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Power of the Consumers in the context of Genetic Sustainability by Tony Shiao

Posted by: | March 30, 2011 Comments Off on Power of the Consumers in the context of Genetic Sustainability by Tony Shiao |

Humans have been modifying crop plant genetics since the conception of irrigation and farming. Our ancestors have always artificially selected crops with faster production and higher yield. Recent advances in biotechnology allow us to splice genetic material directly into plant embryos and create artificial crop plants with immense complexity at an unprecedented rate. As wonderful as genetic engineering may be, the technique does come at a cost. Because genetically engineered plants do not go through the process of natural selection, their impacts on the natural ecosystem are highly unpredictable.[i] For example,  a new strand of alfalfa that is toxic to insects may severely disrupt the natural ecosystem of a locality by eliminating a key species of insect; a new strand of rice that is resistant to weeds may be toxic to any other plants around it. These plants may provide us with higher productivity, but they do so at the cost of our environment.

                What makes genetic pollutions such a difficult problem to tackle is that not only can the effects be devastating, but difficult to eliminate. When plants carrying a harmful strand of genetic material exchange pollen with other similar plants in the area, the hybrid offspring may carry the undesirable genetic material, and farmers may not find out until the offspring plants mature and produce pollens. Irreversibility is not uncommon among modern environmental issues. Even the U.S. Supreme Court itself recognizes the gravity of environmental harms and our limited ability to mitigate such harm.[ii]

                When genetic pollution of our agriculture plants occurs, multiple segments of our society stand to suffer consequences. Farmers who wish to plant wild-type, unmodified crops may find their stocks contaminated and may be force to abandon an entire year worth of crop or perhaps take even more drastic measures to ensure stock purity. Consumers may find their grocery bags filled with fruits and vegetables containing unwanted genetic modifications. Most importantly, our society at large may suffer the consequences due to artificial disturbances to our natural ecosystem. For the potential plaintiffs that can be harmed by agricultural genetic pollution, the prospect of receiving injunction is highly uncertain. In order for a court to grant injunction against a defendant, a plaintiff must prove that an irreparable injury is “likely” to occur.[iii] Injuries cause by genetic pollution are prospective and, to an extent, speculative, and courts have repeatedly denied injunctive reliefs in cases involving possible GMO contaminations.[iv] Once the modified crops are planted, and the harms become obvious, the damage is already done and is extremely difficult, if not impossible, to reverse.

                The Center for Food Safety v. Vilsack series of cases offers an alternative potential remedy for prospective plaintiffs presently facing the unknown harms of agricultural genetic pollutions.[v] Instead of seeking injunctive relief, potential plaintiffs may be able to prevent their crops from being contaminated by genetically modified strands through Federal administrative processes. The CfFS v. Vilsack cases pertain to the deregulation of Roundup Ready sugar beets, a type of genetically modified beets developed by the companies Monsanto and Betaseeds (Monsanto). The Roundup Ready strand was previously regulated by the Animal and Plant Health Inspection Service (APHIS), an agency under the auspice of the U.S. Department of Agriculture. In 2009, APHIS decided to deregulate the planting of Roundup Ready in response to a petition filed by Monsanto. The deregulation proceeded without  completion of a comprehensive environmental impact statement (EIS) as required by the National Environmental Policy Act (NEPA) because APHIS did not consider the potential effects Roundup Ready beets as “significant.”[vi] The plaintiff, representing various wild-type sugar beet growers in Oregon, filed suit to compel the production of an EIS as well as to prevent Monsanto from releasing any Roundup Ready seed until the EIS is complete.[vii]

                The district court in Center for Food Safety eventually ruled in favor of the plaintiff and held that APHIS must conduct an EIS before Roundup Ready beets can be deregulated. While Roundup Ready beets might potentially disrupt the functioning of the natural ecosystem, the court did not cite the direct environment impacts as the basis of its decision. Instead the court primarily relied on the socio-economic impacts caused by consumer reactions as a “significant” impact that warrants EIS discussion.[viii] The court explicitly pointed to the fact that several countries around the world, especially those in Western Europe, prohibit the importation of genetically modified organisms (GMO).[ix] The court also described the aversion many retail consumers harbor towards genetically modified crops.[x]

                 In short, the court seems to see the APHIS deregulation as having a significant impact not only because Roundup Ready beets may adversely affect the members of our society through environmental degradation, but also that Roundup Ready beets may elicit substantial adverse responses from various members of our society.  Center for Food Safety stands for the notion that members of the general public are capable of influencing the sustainability of our agricultural products directly and proactively in areas that even cutting-edge scientific researches cannot. We, as consumers, can decide that we do not want to consume environmental unsustainable genetically engineered products without knowing the exact impacts of such products. This precautionary desire can then in turn be used by responsible players in the agricultural industry to compel stringent analysis through the production of an EIS. The EIS in turn can result in more stringent regulations or even a flat-ban against cultivations of particular genetically modified crops.

                Lastly, it is important to note that Center for Food Safety is mainly concerned with the need of performing an EIS. It is entirely possible that APHIS may decide to deregulate the planting of Roundup Ready beets even after its EIS analysis. After all, NEPA only guarantees procedural, not substantive, results.[xi] Furthermore, while EIS guarantees a comparatively transparent and thorough analytical process, it is not an injunction. Growers of conventional and organic crops are still exposed to the danger of contamination while an EIS is in progress unless an injunction can be obtained independently through specific substantive laws.[xii] Further guidance on the role of consumer preference from our policy makers can certainly improve the administrative efficiency of APHIS as well as more accurately reflect the importance of consumer reactions in the context of genetic sustainability.

[i] Johnson, Brian , Genetically Modified Crops and Other Organisms:  Implications for Agricultural Sustainability and Biodiversity, http://www.eeescience.utoledo.edu/Faculty/Sigler/COURSES/Environmental%20Readings%20and%20Comm/Portfolio%20readings/Genetically%20modified%20crops%20and%20other%20organisms.pdf

[ii]Amoco Production Company v. Gambell, 480 U.S. 531, at 545 ( 1987)

[iii] Alliance for the Wild Rockies v. Cottrell, 2011 WL 208360 (9th Circ.)

[iv] Monsanto v. Geertson Food Farms, 130 S.Ct. 2743 (2010); Center for Food Safety v. Vilsack, 2011 WL 676187 9th Circ.)

[v] 2009 WL 3047227 (N.D. Cal.); 2010 WL 3222482 (N.D. Cal.); 2010 WL 4869117 (N.D. Cal.)

[vi] 2009 WL 3047227, pdf p.3 (N.D. Cal.)

[vii] Id

[viii] Id at pdf p.8-10; Economic and social impacts themselves warrant an EIS discussion only if they are interrelated to environmental impacts. Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934 (2005)

[ix] Id at pdf p.7

[x] Id

[xi] Robertson v. Methow Valley Citizens Council, 490 U.S. 332, at 349 (1989)

[xii] Recognizable injury can be based on traditional tort, the Plant Protection Act, or the Federal Insecticide, Fungicide, and Rodenticide Act. In Re StarLink Corn Products Liability Litigation, 212 F.Supp.2d 828, (N.D.ill. 2002); Center for Food Safety v. Vilsack, 2011 WL 676187 9th Circ.)

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