Hold the Presses! The Low-Down on Monsanto Co. v. Geerston Seed Farms

Last week the U.S. Supreme Court announced its 7-1 decision in Monsanto Co. v. Geerston Seed Farms, a case that’s dominated the news (well, at least the news we tune into here at Farm Aid), with a flurry of conflicting, confusing headlines.

So, here’s a bit of straight talk on the case:

At hand is an appeal by Monsanto, the seed giant, against a lower court’s decision to issue a permanent injunction on the planting of Monsanto’s Roundup Ready alfalfa (a genetically-engineered variety of alfalfa designed to resist Monsanto’s Roundup herbicide). For those not addicted to Law & Order, it means the court issued a permanent order to stop the planting of Roundup Ready alfalfa. For more background on the controversy around Roundup, read about it here in blogs by our spring intern Caroline.

To understand what’s at stake, it’s helpful to review the original case Monsanto appealed.

In 2005, USDA’s Animal and Plant Health Inspection Service (APHIS) deregulated Roundup Ready alfalfa (let’s just call it GE alfalfa for brevity’s sake). USDA’s “Finding of No Significant Impact” or FONSI (officially my favorite government acronym) allowed free reign to plant, harvest and sell GE alfalfa. But—whoops!—USDA failed to prepare an Environmental Impact Statement (EIS) on the novel crop, a violation, it turns out, of federal environmental law.

Enter Geertson Seed Farms, along with the Center for Food Safety and a slew of other parties. They filed suit in federal district court, citing violations of the National Environmental Policy Act, the Endangered Species Act and the Plant Protection Act in the failure to prepare an EIS. They also cited grave concerns about the environmental, health, cultural and economic impacts of GE alfalfa, most of which boil down to the issue of unwanted genetic drift, or in other words, spread of pollen.

GE alfalfa, which is a cross-pollinated plant, can spread uncontrollably since honeybees can carry its pollen many miles away, much farther than the 900-foot isolation distance required between GE and non-GE alfalfa fields. This leaves the potential for contamination of both conventional and organic alfalfa farms from foreign GE alfalfa DNA, patented by Monsanto.

The lower court ruled in favor of Geertson, issuing a permanent injunction (ban) that prohibited the sale of GE alfalfa until a full EIS was completed. This decision was upheld in a federal appeals court.

After two failed appeals in lower courts, Monsanto, backed by groups including the American Farm Bureau, Biotechnology Industry Organization, American Petroleum Institute, U.S. Chamber of Commerce, and CropLife America, brought the case to the highest court of the land—the Supreme Court of the United States.

In their appeal, Monsanto challenged the process used to set the permanent injunction. The Supreme Court agreed, there should have been a hearing conducted prior to permanent injunction, and in turn the ban set by the lower court was removed. Big win for Monsanto?

Certainly Monsanto’s press release on the matter says so:

"This is exceptionally good news received in time for the next planting season. Farmers have been waiting to hear this for quite some time," said Steve Welker, Monsanto's Alfalfa business lead. "We have Roundup Ready alfalfa seed ready to deliver and await USDA guidance on its release. Our goal is to have everything in place for growers to plant in fall 2010."

But wait... not so fast.

Monsanto’s strangely optimistic media spin conceals the larger facts in the Supreme Court decision. What the Supreme Court essentially ruled was that the permanent injunction was unnecessary, since USDA had violated federal environmental law by deregulating before an EIS had been conducted. Hence, the sale of Roundup Ready alfalfa remains illegal until USDA completes an Environmental Impact Statement.

Granted, the win Monsanto can claim is that USDA can now allow restricted or partial planting of the seeds while it completes the Environmental Impact Statement. A permanent injunction would have prohibited that. However, USDA has stated it does not plan to allow partial planting before it completes the EIS next year. And what’s more, farmers and consumers have the right to challenge partial plantings.

The Supreme Court opinion, delivered by Chief Justice Alito, also affirmed that genetic contamination is a legitimate environmental and economic concern, worthy of being considered harmful under the law. This affirmation gives farmers a legitimate basis to challenge future biotech crop commercialization in court.

Said Phil Geerston of the decision:

"We brought this case to court because I and other conventional farmers will no doubt suffer irreversible economic harm if the planting of GE alfalfa is allowed. It was simply a question of our survival, and though we did not win on all points of the law, we are grateful that the practical result of today's ruling is that Monsanto cannot take away our rights and Roundup Ready alfalfa cannot threaten our livelihoods."

What does it mean for family farms? This is mostly good news for conventional and organic farmers who have no interest in planting GE alfalfa and face possible environmental contamination and severe economic harm to their operations. It’s mostly a win for dairy farmers who don’t want their cows to eat GE alfalfa, especially organic dairy farmers who would no longer be able to call their milk organic if their cows did so, intentionally or accidentally through pollen drift. Consumers concerned about a lack of transparency surrounding GE products in the food chain can also consider this a victory.

This, however, is by no means the end of this story. The fate of GE alfalfa falls squarely on the shoulders of USDA, which must perform a thorough review of its potential impacts. Most recently, 56 Congresspeople, led by Senator Patrick Leahy of Vermont and Representative Peter Defazio of Oregon, sent a firm letter to USDA Secretary Vilsack, asking him to seriously rethink previous evaluations of GE alfalfa. They cite several cases of contamination during the two years it was permitted for commercial growing. I highly recommend the read.

For more information:

Food Safety News has a good overview of the case, available here.

The Center for Food Safety will be keeping track of USDA’s progress on the Environment Impact Statement. Check them out here.