Summary of a Recent
Judicial
Development in
Biotechnology
Hard Look Required Before
Deregulating Alfalfa
Eric PendergrassNational AgLaw Center Graduate Assistant
In Geertson Seed Farms v. Johanns, No. C 06-01075 CRB, 2007 WL 518624 (N.D. Cal. Feb. 13, 2007), the United States District Court for the Northern District of California held that the Animal and Plant Health Inspection Service (APHIS) did not adequately assess the environmental impact of glyphosate-resistant alfalfa before deciding deregulate it.
Plaintiffs, consisting of farmers, the Sierra Club, and other consumer organizations, claim that APHIS failed to make an adequate assessment of the environmental impact of glyphosate-resistant, Roundup Ready, alfalfa. Id. at *1. The National Environmental Protection Act (NEPA), 42 U.S.C.A. § 4332, and the Endangered Species Act (ESA), 16 U.S.C.A. § 1536(c)(1), require government agencies like APHIS to prepare detailed environmental impact statements when they take action that could have an affect on the environment. Geertson Seed Farms, 2007 WL 518624, at *3. The court concluded that APHIS's determination that the deregulation of the bioengineered alfalfa would not have a significant impact on the environment was arbitrary and capricious. Id. at *6.
To meet the standard required to combat APHIS's conclusion that no significant impact might occur, the plaintiffs showed the possibility of gene transmission to non-modified plants, the development of alfalfa weeds resistant to glyphosate, and the increased use of glyphosate herbicides. Id. at *4-*11. According to the court, APHIS did not adequately consider the potential for the genetically engineered version of alfalfa to cross-pollinate with and contaminate organic varieties, thereby eliminating the possibility of growing and marketing a truly organic crop. Id. at *6. Along the same lines, APHIS's reliance on good stewardship practices to prevent the development of glyphosate-resistant weeds was deemed not to be an adequate assessment of the potential environmental impact associated the deregulation of this crop. Id. at *10. Finally, the facts and circumstances surrounding APHIS's determination did not indicate whether it considered the cumulative effect of repeated application of glyphosate herbicides like Roundup, which the court deemed necessary. Id. at *11. Consequently, the court granted the plaintiffs' motion for summary judgment and effectively blocked the deregulation of Roundup Ready alfalfa. Id. at *12.
The case was decided on February 13, 2007; this summary was posted July 20, 2007.