Impacts of Agricultural GMOs on Wildlands: A New Frontier of Biotech Litigation

knudsen nre summer 2011

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Genetically Engineered Alfalfa – Coming Soon to a Field Near You

The USDA’s Animal and Plant Health Inspection Service (APHIS) just announced its decision to fully deregulate genetically engineered (= genetically modified, or GM) alfalfa. GM alfalfa is resistant to Monsanto’s glyphosate herbicide, commercially known as Roundup. The decision to completely deregulate the crop (expect to see large acreages planted this spring) surprised some observers, since the agency’s own recently-completed environmental impact statement (EIS) suggested two additional alternatives involving some level of regulation for the crop, such as not allowing it to be grown where it is likely to contaminate conventionally or organically grown alfalfa.

The global area planted with GM crops continues to grow. It was more than 200 million acres in 2005, with five countries (USA, Argentina, Brazil, Canada, and China) accounting for approximately 95% of the total area devoted to GM crops. The most common engineered trait is herbicide tolerance (e.g., Roundup Ready crops), followed by expression of the insecticidal Bt toxin. Soybean is the GM crop occupying the greatest acreage, followed by corn, cotton, and oilseed rape. Now, we can add alfalfa to the list.

GM alfalfa has had a lively history in the courts. In 2007, a California district court enjoined planting of Roundup Ready alfalfa seed, in response to a lawsuit by a consortium of plaintiffs including Geertson Seed Farms, Trask Family Seeds, Center for Food Safety, Beyond Pesticides, Cornucopia Institute, Dakota Resource Council, National Family Farm Coalition, Sierra Club, and the Western Organization Of Resource Councils. In 2008 the Ninth Circuit Court of Appeals upheld that nation-wide injunction, but last year the U.S. Supreme Court removed it (although still requiring APHIS to complete its EIS, a decision that some environmentalists likened to applying the brakes after your car has crashed). The decision by the Roberts Court wasn’t too surprising, since it had previously reiterated, in a 2008 case involving detrimental effects of naval sonar on marine wildlife, a stringent standard requiring that injunctive relief in environmental protection cases be based on hard evidence that irreparable environmental or economic injury is likely.

That evidence can be sometimes be hard to come by. Genes from genetically engineered organisms (GMOs) may contaminate conventional and organic crops, as well as wild plant populations. Product liability based on contamination was the basis of some of the most significant biotechnology litigation to date (more than $100 million in damages), after traces of the genetically engineered corn variety ‘StarLink’, intended for animal feed, were found in taco shells at Taco Bell restaurants. There are also concerns that genetically modified plants, animals, or microbes may negatively impact the environment, including potential invasiveness of either the GMO or of organisms with which it hybridizes, loss of biodiversity, and direct nontarget effects on other organisms. Novel genetic material can move into environments or organisms beyond the intended host, for example via dispersal of seeds or pollen of a genetically modified plant by wind, animals, or insects. Novel genes (transgenes) engineered into crops could be introduced into the genomes of their wild relatives. Some scientists are concerned that hybridization between GM crops and their wild relatives may result in the evolution of increased weediness in wild plants (so-called ‘superweeds’), including resistance to current control strategies, or that the escaped crop plant itself may become a weed. For example, genetically modified herbicide-tolerant canola plants have become a significant weed problem in some parts of Canada. Still, it is worth remembering that, irrespective of GM crops, modern agriculture already profoundly impacts environmental resources, including a decline in biodiversity that has been observed in numerous ecosystems.

There is some apprehension about direct impacts of GM crops on nontarget species in ecosystems outside of production fields or facilities, for example, the unintentional poisoning of beneficial insects by plants expressing pesticidal properties such as the Bt Cry-proteins. Most published studies to date assessing possible non-target effects of Bt crops have shown only subtle changes in the associated arthropod communities, which could be explained by a reduction in the target pest population. However, in one recent (although controversial) paper, investigators found that corn pollen and detritus entered headwater streams where it was subject to consumption by nontarget stream insects, which in turn are important prey for aquatic and riparian predators, potentially resulting in significant adverse ecosystem-level effects (Rosi-Marshall et al., 2007, Toxins in Transgenic Crop Byproducts May Affect Headwater Stream Ecosystems, PNAS 104:16204-16208).

APHIS’ decision is consistent with a history of what many view as governmental acquiescence to the interests of the biotech industry. Even on the international front, the U.S. has consistently lobbied, with industry backing, for a showing of definitive scientific evidence of harm before biotechnology regulation is imposed. For example, the U.S. opposed provisions of the Convention on Biological Diversity and the subsequent Cartagena Protocol on Biosafety (and still has not ratified those agreements), which established the ‘Precautionary Principle’ as a basis for safe importation and use of engineered organisms. The Precautionary Principle states that a lack of full scientific certainty should not be an excuse to postpone regulatory action when there is a threat of serious or irreversible damage.

Ironically, alfalfa was one area where industry had been relatively more responsive to enviromental concerns about GM crops. The National Alfalfa & Forage Alliance (NAFA) was proactive in promoting a ‘coexistence strategy’ for the different types of growers, and even produced a series of documents addressing coexistence issues relevant to organic alfalfa seed and hay producers, as well as alfalfa seed and hay exporters. Although coexistence appeared as one possibility that APHIS considered in its recent decision, and would seem to be one of the more sensible options, it was roundly criticized by industry supporters including several congressional Republicans. In the House Agriculture Committee’s first meeting this year, just before the APHIS announcement, the committee’s new chair Frank Lucas (R-Okla.) expressed the opinion that the proposed coexistence option would “have a negative impact on all U.S. agriculture”. In a letter to the Secretary of Agriculture, Lucas, joined in this disconnect from reality by colleagues Saxby Chambliss (R-Ga.) and Pat Roberts (R-Kansas), claimed that acceptance of the coexistence option would “politicize the regulatory process,” and would be “a poor substitute for existing options available for farmers to amicably resolve the concerns regarding co-existence of agriculture biotechnology, conventional and organic crops.” Those ‘existing options’ represent wishful thinking, and nobody who has seriously considered the scientific and legal history of this issue expects an amicable resolution any time in the near future. In light of that, Monsanto might do well to trademark the term ‘Lawsuit Ready’ for their next generation of GM crops.

Guy Knudsen is an attorney with interests in environmental law and human rights issues. The opinions expressed herein are those of the author, and do not necessarily reflect a position of Paloma Institute. They also do not reflect any position of the University of Idaho.

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Sanitation in Haiti: Beyond the Cholera Epidemic

    Sanitation in Haiti: Beyond the Cholera Epidemic 

   With a death toll of more than 2,000 persons (as of this writing) and rising every day, the cholera epidemic in Haiti is major and tragic news.  Of course, the impact of this disease is especially devastating in a country that awoke so abrubtly to the earthquake of last January, and where much of the Port au Prince population still lives amid the rubble of that event.  Ironically, as sudden and unexpected as the earthquake was, the appearance of cholera on the island this past summer was even less anticipated by many public health agencies.

   Last spring, while browsing the internet for health news from Haiti, I read on the CDC (Centers for Disease Control) website that “an outbreak of cholera is very unlikely at this time.”  This optimistic reasoning reflected, in part, the observation that epidemic cholera had not been reported from Haiti before.  The CDC went on to note that for an outbreak of cholera to occur, certain conditions must be met: “…there must be significant breeches (sic) in the water, sanitation, and hygiene infrastructure used by groups of people, permitting large-scale exposure to food or water contaminated with Vibrio cholera organisms; and… cholera must be present in the population.”  Epidemiologists commonly represent the necessary conditions for occurrence of an epidemic with a conceptual “disease triangle”, a shape whose three legs represent essential factors for disease development: susceptible host population, virulent pathogen population, and a conducive environment.  The disease triangle looks like the figure below, and theoretically the absence of any one leg would render disease occurrence impossible:   

  

   Certainly the population of Haiti was susceptible to this disease; most people around the world are, and while prior exposure to the disease may impart some limited immunity in a population, that isn’t the case for Haiti.  CDC correctly identified components of the ‘conducive environment’ leg of the triangle: a breakdown of the water, sanitation, and hygiene infrastructure.  However, even pre-earthquake, these systems have long been non-functional over much of Haiti, especially in rural areas.  And the final leg of the triangle, presence of a virulent pathogen (i.e., the bacterium Vibrio cholerae), is a true wild card.  It’s hard to predict where this organism will show up: certainly it is present in high numbers in the feces of diseased individuals, and anywhere that contaminated fecal material is found including food preparation areas, water supplies, etc.  But the bacterium is also an inhabitant of a variety of natural habitats, especially brackish waters where it associates with certain algae and zooplankton as well as with cyanobacteria (‘blue-green algae’).  Occasionally persons in the United States have contracted cholera after eating raw contaminated shellfish from the Gulf of Mexico.  It is considered possible that a Chinese freighter introduced the pathogen to waters near Lima, Peru, triggering the 1991 cholera epidemic that killed more than 3,500 people.  The organism can sometimes be found in freshwater habitats as well.  Bottom line, it is difficult to predict where and when the pathogen might show up, and it’s dangerous to assume that it never will.

   Some diseases have relatively characteristic symptoms, e.g., the swollen lymph glands (‘buboes’) of bubonic plague, or the cyclic fever which is a hallmark of malaria.  The primary cholera symptom is less unique:  an acute and copious (though painless) watery diarrhea, often accompanied by vomiting.  Many people who ingest the pathogen don’t become noticeably ill, and many others don’t experience serious illness.  However, for the approximately 20% who develop advanced symptoms of cholera, dehydration and death can occur rapidly. 

   For most of us in the U.S., of course, even the mildest cholera-like symptoms would be cause to seek immediate medical attention, which can be as basic as rapid and sustained rehydration with (clean) water and replenishment of electrolytes.  In much of Haiti, however, the main initial symptom of cholera, watery diarrhea, is unfortunately a routine fact of life, and can be caused by a variety of agents besides Vibrio cholerae.  These pathogens share the characteristic of being spread via fecal contamination of food and water.  They include norovirus (Norwalk-like viruses), rotavirus, enterotoxigenic Escherichia coli, Giardia, and cryptosporidia.  Clinically, they are pretty much indistinguishable from each other.  Many Haitians endure chronic infections with one or more of these pathogens, so that diarrhea is a very common illness.  It is a leading cause of death (as high as 16% of deaths) among children.  However, as for cholera, the prevention of all these sources of illness is potentially straightforward:  clean drinking and cooking water, clean food preparation facilities, and adequate human waste disposal systems.  Hence the title of this article, because both the underlying problems, and their eventual solution, transcend even the tragedy of the current cholera epidemic.  The health of a country depends on their solution.

Development of a sustainable, microbiologically-based human waste composting system for rural Haiti.  A number of rural Haitian towns, such as on the island of La Gonâve (population 160,000), have become de facto large urban areas, due to immigration of earthquake refugees from Port-au-Prince.  Water supplies in many villages consist of springs, from which containers of water must be carried by hand, often for long distances.  Most sanitation facilities in rural Haiti, primarily pit toilets, were implemented without adequate consideration of waste treatment.  Sometimes, the shortage of even pit toilets forces people to simply defecate on the ground.  It isn’t surprising that human waste, often containing microbial pathogens, frequently ends up in local water supplies. 

 

(photos: L.M. Dandurand, J. Boughton)

  As an alternative to traditional pit toilets, composting toilets have been introduced to a number of villages throughout Haiti.  Potentially, composting toilets offer a way to separate human waste from water sources, and, if properly implemented, can even provide badly needed fertilizer for small-scale agricultural use.  Paloma Institute is providing support to a citizens’ group, Liberte, in the village of Bwanwa, La Gonâve, for education and training in sanitation and water quality issues related to human waste, as well as construction and implementation of composting toilet systems.  This project, still in its early stages, is funded by the generous contributions of our donors, and we hope to be able to fund a significant expansion in the near future.    

   Although composting toilets are being implemented in much of the developing world, impediments to their sucessful and sustainable use include low composting efficiency in some environments, problems with odor and filth flies, and uncertainty about potential pathogen survival in composted waste.  At Paloma Institute, we are actively pursuing additional funding, from both private donors and major granting agencies, to address these problems in a comprehensive program involving fundamental research, education, and collaboration with local citizens’ groups for effective and sustainable implementation.  Our overall goal is to address the above problems using a novel and holistic approach that focuses on identification and augmentation of efficient (fast, odor-minimizing) microbial consortia, determining and verifying the process parameters necessary for pathogen elimination to safe levels, and microbial source tracking to verify the fate of waste-associated microorganisms.  These will be implemented in an inexpensive modular system using locally-available biodegradable materials. 

For more information about our Haiti sanitation project, or about our related projects in environmental protection, agriculture, public health, and the arts, please contact us at info@paloma-institute.org or visit our website:  http://www.paloma-institute.org   

Paloma Institute is a 501(c)(3) Federal income tax-exempt organization, and contributions are tax deductible.  We thank you for your support.

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Microbial Source Tracking: Pointing the Finger of Blame for Waterborne Pathogens (2010)

Published in:  American Bar Association, ABA Water Quality and Wetlands Committee Newsletter, Fall 2010

MICROBIAL SOURCE TRACKING: POINTING THE FINGER OF BLAME FOR WATERBORNE PATHOGENS

 GUY R. KNUDSEN

 Clear, sparkling water is not an accurate indicator that rivers, lakes, streams, or private and municipal water sources are free of microbial contamination.  The microbiological impairment of water quality, resulting from activities including agriculture, industry, and residential waste generation, is one of the most significant threats to human health.  A variety of sources contribute potentially pathogenic microorganisms to waters, including fecal contaminants originating from humans, livestock, and wildlife.  Counts of fecal coliform bacteria form an important component of TMDL (Total Maximum Daily Load) development and analysis.  Under section 303(d) of the 1972 Clean Water Act, states are required to develop lists of impaired waters, and to establish priority rankings for waters on the lists and develop TMDLs for them.  TMDLs specify the maximum amount of a pollutant that a waterbody can receive and still meet water quality standards, and allocates pollutant loadings among point and nonpoint sources.  Fecal coliform counts are standard for residential well testing, and are commonly used in watershed monitoring by regulatory agencies.  Many TMDL watersheds are impaired by excess fecal coliform levels.  For example, it has been estimated that 47% of Minnesota’s river and stream miles do not achieve the Clean Water Act’s ‘swimmable’ goal due to elevated fecal coliform counts.  Nationwide, the U.S. EPA estimates that about 13% of the country’s surface waters violate fecal bacteria standards.

 The large group of bacteria known as ‘coliforms’ includes a number of genera, which thrive in various soil and aquatic environments.  A subgroup, fecal coliform bacteria (especially, Escherichia coli) reside in the intestines of warm-blooded animals, and are excreted in waste material.  The presence of E. coli is specifically indicative of fecal contamination, and high numbers of these bacteria in water samples traditionally has been used as an indicator of unsanitary conditions that pose health concerns.  Thus, detection of fecal bacteria may also indicate the presence of toxigenic E. coli strains such as O157:H7, as well as other pathogenic bacteria (Shigella, Salmonella), enteroviruses such as Hepatitis A or Norwalk group viruses, and parasites such as Giardia or Cryptosporidium.  

A certain level of fecal coliform bacteria will always be found in watersheds.  Human sewage, concentrated animal feeding operations (CAFOs), livestock grazing, and agricultural operations such as manure application all contribute fecal contaminants.  Waterfowl and other wildlife may also contribute significantly to bacterial counts.  Knowing the source(s) of bacteria in a water body or water supply is potentially of great value in the remediation and prevention of further bacterial contamination, as well as in efforts to ascribe liability to those responsible for the pollution.

To date, there are no universally accepted standard methods to distinguish among human, livestock, wildlife, and other sources of fecal coliform pollution.  However, the development of new  methodologies for determining the actual animal source of fecal coliform bacteria (as well as certain other fecal microbes) has been an area of intensive research for a number of years.  In a best-case scenario, waterborne E. coli can be characterized by genetic or phenotypic means, to the extent that it now becomes possible to pinpoint specifically where the bacteria came from (e.g., CAFO, streamside grazing, residential sewage, etc.), thus greatly expanding the potential for litigation against those responsible for the pollution.  This suite of new methods is known by the generic name of ‘microbial source tracking’ (MST), or, more specifically for E. coli and other bacteria, as ‘bacterial source tracking’ (BST).  In this article, I will focus on BST methods developed for E. coli, and the role these are expected to increasingly play in environmental regulation and litigation.

Each of the BST methods relies on the observation that different animal sources produce unique, identifiable strains of fecal bacteria, presumably as a result of the different intestinal environments and selective pressures to which the bacteria are subjected.  A bacterial strain that has adapted to a particular  host intestinal tract is capable of colonizing that environment and competing favorably with other members of the indigenous intestinal microbial community.  The BST methods that have been investigated can be broadly categorized according to whether they distinguish among samples based on their genetic makeup (genotypic methods), or based on their observable physiological characteristics (phenotypic methods).  Within each group, some methods require the development of a background ‘library’ or database, against which an unknown sample can be compared, while other methods do not require such a library.  Genotypic methods generally involve analysis of specific DNA sequences from the sample organism, typically after amplification (via polymerase chain reaction, PCR) of the tiny amount of bacterial DNA that can be recovered from environmental samples.  One particularly promising method, known as ribotyping, analyzes a portion of the organism’s genome that encodes for ribosomal RNA.  Ribosomal RNA is the central component of ribosomes, the protein factories possessed by all living cells.  Because the function of ribosomal RNA is so essential, the encoding genes tend to change very slowly over evolutionary time, allowing relatedness among species and even subspecies to be narrowly defined with a characteristic ‘fingerprint’.  Phenotypic methods of bacterial source tracking evaluate such characteristics as resistance to (sometimes multiple) antibiotics, or profiles of specific carbon source utilization.

Each of the many BST methods has its proponents, but generally the genotypic methods have been found to more rigorously distinguish fecal bacteria from different sources, although typically at a higher cost in materials and labor.  Conflicting criteria for determining an optimum method, i.e. accuracy and repeatability vs. low cost, will play a role in management decisions as well as potential litigation, where results will be subjected to evidentiary standards.

Although development of MST methods is ongoing, they are proving to be powerful tools for watershed management, and are increasingly being applied by public agencies.  Particularly in California, agencies are spending millions of dollars to identify sources of bacteriological water contamination.  For example, the city of San Diego commissioned two microbial tracking studies in 2002, after extensive sewer and storm drain upgrades failed to reduce bacterial pollution in Mission Bay.  That study concluded that bird droppings were the primary source of the pollution, and the city was able to modify its bayside irrigation practices to alleviate the problem.  When surfers at Rincon Point, near Santa Barbara, complained about bacterial pollution in the lagoon, the environmental group Heal the Ocean teamed with county health officials to commission a BST study.  There, the source was tracked to septic tanks from neighboring homes, prompting a neighborhood upgrade of the sewer system.   On another beach, however, a BST study prompted a different management strategy.  At Arroyo Quemado Creek beach, frequently closed due to high bacterial counts, the study indicated that seagull droppings were the primary contribution to the problem, and when the birds were scared away the beach water quality rose dramatically.

The development of BST methods has implications for CAFOs as well.  There is increasing public concern about potential water pollution from livestock feeding operations.  For example,  the Texas Institute for Applied Environmental Research found that elevated fecal coliform levels in rivers were correlated with the application of dairy manure to nearby fields.  EPA has proposed strict Animal Feeding Operations guidelines in an attempt to prevent manure pollution from those operations getting into waterways and other riparian areas.  As pointed out by the environmental management committee of the National Cattlemen’s Beef Association, hopefully “regulations will be based on a cooperative basis and not on a top-down basis”, and “a site-specific, science-based approach is the only way to make environmental regulations concerning livestock production operations work.”  With growing public concern about the relationship between livestock operations and water pollution, more citizen complaints can be expected, and potential consequences for the industry will be stricter regulations, higher costs, penalties, and even lost business.      

Of course, identification of a source of fecal bacterial contamination can have implications for more than management decisions.  There is a long history of successful lawsuits by plaintiffs whose health was adversely affected by ingestion of food or water contaminated by fecal bacteria.  The most notorious of these have been related to E. coli contamination of food items, including hamburgers, strawberries, and spinach.  In the case of food crops, it is likely that the contaminant bacteria contacted the produce via polluted irrigation water, although the chain of causation has typically not been easy to demonstrate.  Application of BST methods should make the assignment of liability more feasible, and has the potential to greatly increase litigation in this arena. 

However, one recent case indicates that the courts may not yet be ready to accept BST methods, at least in the current state of the art.  In May of this year, the U.S. Tenth Circuit Court of Appeals affirmed a district court decision not to enjoin Tyson Foods, Inc. and several other defendants from applying poultry waste to lands within the Illinois River watershed (Oklahoma v. Tyson, 10th Cir. 2009, No. 08-5154.)  Poultry litter contains a number of enteric bacterial pathogens including E. coli, Salmonella, and Campylobacter.  To bolster its claim that land application of poultry litter is a cause of fecal bacterial contamination in the Illinois River waterways, the state presented two expert witnesses, a microbiologist and a geochemist, who testified that their use of BST traced a contaminant path from fields where the waste was applied to the watershed, with detection of a ‘poultry-specific’ signature.  The district court rejected that contention, however, concluding that Oklahoma failed to demonstrate that “bacteria in the waters of the IRW are caused by the application of poultry litter rather than by other sources, including cattle manure and human septic systems.” (Oklahoma v. Tyson, D.C. No. 05-CV-00329-GKF-SAJ (N.D. Okla.))  The district court further held that the expert testimony was not sufficiently reliable under the Daubert standards (Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)), and therefore declined to accord it the weight required to establish a link between the poultry litter and the fecal bacteria levels in the rivers and streams.  The appellate court agreed and affirmed, adding that in its opinion the BST technology employed was “novel and untested.” 

Although the Oklahoma v. Tyson court appeared to support the contention of Tyson’s attorney that the state was relying on claims of “ghost pathogens” to make its case, an increasing volume of scientific evidence and acceptance of MST technology will likely serve to limit the precedential value of this decision.  Source tracking of microbial pollutants will undoubtedly play a major role in future litigation in the water quality arena.

 Guy R. Knudsen is Professor of Microbial Ecology & Plant Pathology at the University of Idaho, and a private practice attorney in environmental law.  You may contact him via e-mail at gknudsen@uidaho.edu.

 

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Biofuels: The Environmental Downside

Published in:  American Bar Association, ABA Agricultural Management Committee Newsletter, Fall 2009

BIOFUELS: THE ENVIRONMENTAL DOWNSIDE

Guy R. Knudsen

Biofuels are obtained from living or recently living biological materials, typically plants and plant-derived products, in contrast to fossil fuels (coal, oil, natural gas) which were formed from plants and animals living up to 300 million years ago.  Biofuels include ethanol and biodiesel, and are widely considered to be promising sources of renewable energy.  Ethanol as a biofuel can be produced from a variety of crops including corn, sorghum, wheat, sugar cane, and fast-growing trees such as poplar.  Ethanol typically is combined with gasoline, promoting more complete fuel burning and reducing certain harmful emissions including carbon monoxide and hydrocarbons.  Biodiesel is derived from natural oils of plants including soybean, palm, and rapeseed, hemp, algae, etc., and also from waste vegetable oil and animal fat. 

Because plant-derived biofuels represent a renewable resource, and since plants themselves remove CO2 from the atmosphere, biofuels have been hailed as an effective and sustainable source of energy, with environmental benefits including mitigation of climate change.  Backed by growers, politicians, and many environmentalists, subsidized biofuel production and use in the U.S. and Europe have expanded rapidly in recent years.  In the U.S., the 2007 Energy Act mandated significantly increased usage of cellulosic ethanol.  The 2008 Farm Bill provides subsidies for growers of biofuels crops as well as for refiners who convert them to ethanol.  Corn-based ethanol is currently the most widely used biofuel in the United States.  In Europe, the EU several years ago set a target whereby biofuels such as rapeseed, palm oil and bio-ethanol were to account for 10% of transport fuel by the year 2020 (although that target has recently been lowered to 6%.)

However, an increasing number of scientists and economists are warning that problems associated with biofuels continue to be ignored by policy-makers.  One concern relates to “carbon-neutrality” and the actual energy yield of biofuels. Carbon-neutrality is based on the idea that CO2 released from combustion of biofuels is cancelled out by CO2 absorbed by the growing plants.  However, if the CO2 released during crop production and biofuel processing is also factored into the equation, by some estimates many biofuels come up short.  There are similar concerns about the true amount of net energy provided by different biofuels, with some (albeit controversial) studies indicating that for many crops, more fossil energy is required for biofuel production than is actually produced as fuel (e.g., Pimentel et al., Human Ecology 37:1-12.) 

A second major concern relates to the diversion of cropland from food production to biofuel production.  When biofuel crops replace food crops, there may be an accompanying rise in food prices.  When croplands are shifted to biofuel production in developing countries particularly, economic and social inequities may result. 

The third area of concern about biofuel production, which will be the focus of the remainder of this article, is the often ignored or underestimated potential for environmental damage.  There are several general areas of environmental concern related to biofuel production, including adverse effects on air pollution and global warming, deforestation and loss of habitat diversity, and production-associated problems involving water usage, fertilizers, and pesticides. 

Adverse effects on air pollution and global warming

At first glance, the production of biofuel crops, which actually remove CO2 from the atmosphere, would appear to be environmentally benign.  However, these crops have to grow somewhere, and in much of the world the conversion to biofuel crops involves removal (including burning) of the original tropical forest, peatland, or other vegetation.  For example, there has been a major effort to plant and harvest oil palms in several tropical developing countries, including Indonesia, Malaysia, Thailand, and some West African countries.  Production has approximately doubled in the last twenty years.  The rapid release of CO2 into the atmosphere that accompanies land clearing, as a result of biomass burning and decomposition of plant material and soil humus, potentially negates any greenhouse gas benefits of subsequent biofuels crops, perhaps for many years to come. 

Biofuel crops may contribute to atmospheric pollution in another way: production of both corn and rapeseed (the most widely planted biofuel crops in the U.S. and Europe, respectively) requires large inputs of nitrogen fertilizer.  This can result in significantly higher release of nitrous oxide, a potent greenhouse gas, into the atmosphere.  A recent study (Crutzen 2007,  Atmos. Chem. Phys. Discuss. 7:11191–11205) estimated that biodiesel produced from rapeseed can result in up to 70% higher greenhouse gas emissions compared to fossil fuels, while corn can result in up to 50% higher emissions.  To summarize, growing and burning many biofuels may actually raise rather than lower greenhouse gas emissions.

Deforestation and loss of habitat diversity

Habitat loss due to the increasing conversion of wildlands to biofuel croplands will have lasting and deleterious effects on biological diversity, i.e., the numbers and distribution of species of plants, animals, and microorganisms in a given area.  For example, oil-palm plantations cover over 13 million ha, primarily in Southeast Asia, where they have replaced the biologically-rich tropical rainforest (Finn et al. 2009.  Conserv. Biol. 23:348-358).  It was found that trees, lianas, epiphytic orchids, and indigenous palms were completely absent from oil-palm plantations, and that the majority of remaining plant and animal species in those plantations were of low conservation concern.  The situation is similar with soya, used as a raw material for biodiesel, and production of which in large plantations is a major factor behind the destruction of the Amazon rainforests.  Conversion of forested lands to short-rotation biofuel cropping systems has the potential for release of carbon stored as soil organic material, along with increased erosion and reduced soil fertility. 

Another negative consequence of increased biofuel production in ecologically sensitive areas is the potential increase in numbers of invasive species.  As efforts continue towards identifying new biofuel crops, including non-native species, it is important to realize that a number of plant traits considered to be ideal for a biomass crop (e.g., high biomass production per unit energy input, efficient use of light, water and nutrients, perennial growth) are also common features of invasive plant species.  As an example of a poorly-planned crop introduction, the plant known as Johnson grass was introduced as a forage grass and has now become an invasive weed in many states.  Some of the same concerns about invasiveness arise around cellulosic agrofuels based on fast-growing genetically engineered trees.

Despite the economic attractiveness of many of these new biofuel crops, and their purported benefits related to global climate change, the possible ecological risks associated with them need to be carefully assessed prior to their introduction.  Indeed, programs aimed at reducing deforestation may well provide a more effective climate-change mitigation strategy than conversion of forests for biofuel production, and would have the additional benefit of helping countries to meet their international commitments for biodiversity support (Finn et al 2009).  Arguably, appropriate management practices will help to reduce potential deleterious environmental impacts of biofuel production.  On the positive side, there is the possibility that if biofuels are produced so as to reduce rather than increase atmospheric greenhouse gases, a beneficial impact on biodiversity might be attained (Sala et al.  2009. SCOPE International Biofuels Project). 

Problems with biofuel corn

Corn-based ethanol is the most widely used biofuel in the United States; e.g., in 2006 approximately 18% of the U.S. corn harvest was directed towards grain ethanol production. Unfortunately, corn ethanol may also be the most environmentally damaging of all the crop-based energy sources.  The economic and political clout behind taxe breaks for corn ethanol and subsidies for building ethanol plants in the U.S. are enormous, but critics suggest that as a strategy to reduce greenhouse gas emissions, corn ethanol falls far short of the claims made by its proponents.

Corn is a relatively inefficient biofuel crop, in part because of the extensive inputs needed to grow it.  The National Agricultural Statistics Service (NASS) estimated that the 2005 corn crop consumed 157 million lbs of herbicides and 4.8 million lbs of insecticides.  Continuous corn production (“corn-on-corn”), in particular, is a highly unsustainable agronomic system. A typical corn-soy rotation with soil-conserving no-till production of nitrogen-fixing soybeans is less potentially damaging to surrounding ecosystems. Corn typically uses more fertilizer than any other crop in the U.S.  Nitrate leaching, resulting from high levels of nitrogen fertilizer application, is the main contributing factor to nitrogen pollution of groundwater and surface and coastal waters.  Also, via the process of denitrification, nitrates in soil are converted to the greenhouse gas nitrous oxide.  Corn production results in significant soil erosion, causing a loss of soil fertility and impairing the quality of aquatic life and drinking water.  Increased algal outbreaks and fish kills have been attributed to high fertilizer usage, including that associated with increasing corn acreage. The so-called ‘dead zone’ in the Gulf of Mexico, where fertilizer runoff from Midwestern farms drains via the Mississippi river system, could worsen under corn-on-corn production that serves biofuels.

Are governments stepping back from biofuels?

In recent years, a number of national and local governments have quietly scaled back their previously enthusiasm towards the promotion and subsidy of biofuels.  In Europe, several governments are rolling back their previous across-the-board biofuel subsidies, perhaps in tacit acknowledgment that the environmental and economic benefits have often been overstated.  For example, the Netherlands recently decided to no longer subsidize the importation of palm oil, a major source of ‘green’ electricity generation, after it was realized that the supplying Asian plantations were largely being created from drained peatlands, with severe environmental consequences.  Nations including Britain, France, Germany, the Netherlands, Switzerland, Australia, and Canada have reduced or revised incentives for biofuel growers and/or refiners.  In many instances, the new guidelines will require that manufacturers and sellers quantify the net environmental effects of a biofuel, before becoming eligible for subsidies.

Closer to home, the city of Berkeley, California, is now reconsidering its six-year policy of using biodiesel in city trucks and machinery.  In the wake of a new study claiming that biodiesel production and use actually may increase greenhouse gases worldwide, as well as exacerbating world hunger, Berkeley has stopped receiving shipments of soybean-derived biodiesel pending further analysis of the city’s Community Environmental Advisory Commission report and recommendation.  The decision did not sit well with the National Biodiesel Board, a trade association representing the biodiesel industry, which claimed that the decision was based on “misunderstandings about how soybeans are farmed” (See, e.g, Kimball Nill, US Soy is More Sustainable than Ever, Agricultural Management Newsletter CITE).  Increasingly, depending upon where and how these crops are grown, however, the scientific literature has been less than sanguine about the future of biofuels; for example, a recent Swiss study which concluded that environmental costs of fuels made from U.S. corn, Brazilian soy, and Malaysian palm oil may be greater overall than those of the fossil fuels they would replace (Scharlemann and Laurance, Science 319:52-53). 

Where do we go from here?

As society attempts to transition from fossil fuels to renewable energy sources, it is likely that biofuels are here to stay, along with solar, hydro, and geothermal power.  Truly sustainable biofuel production may yet play a valuable role in mitigating global climate change and improving environmental quality.  But in order to do so, it will be necessary for policy to be based on sound science rather than shortsighted economic considerations.  Some crops will never be environmentally and economically viable biofuel candidates, despite intense political efforts to make them so.  In a recent published policy statement the Ecological Society of America summed up the need as follows:  “Biofuels have great potential, but the ecological impacts of their development and use must be examined and addressed if they are to become a sustainable energy source.  The sustainability of alternative biofuel production systems must be assessed now, in order to maximize the potential for developing truly sustainable scenarios – that is, profitable systems that can provide adequate biomass with the least amount of environmental damage.” (http://www.esa.org/pao/policyStatements/Statements/biofuel.php),

Guy R. Knudsen is Professor of Microbial Ecology & Plant Pathology at the University of Idaho, and a private practice attorney in environmental law.  You may contact him via e-mail at gknudsen@uidaho.edu.

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Biotech Crops Litigation Update (2009)

Published in:  American Bar Association, ABA Agricultural Management Committee Newsletter 13:5-8; 2009)

 BIOTECH CROP LITIGATION UPDATE

 GUY R. KNUDSEN

 Genetically modified (“transgenic”, or “biotech”) crops have transformed U.S. agriculture, but almost fifteen years after the first commercial introduction of transgenic corn, the release and production of biotech crops remains controversial and litigious.  In the past couple of years, some significant cases have continued to alter the playing field for companies producing,  marketing, or seeking federal regulatory approval for transgenic crops.  Some of these cases reflect an increasingly sophisticated legal and public relations approach by anti-biotech plaintiffs.   Claims based on environmental laws and regulations have the potential to be bolstered with common law tort theories of liability, i.e., negligence, trespass, or nuisance.

 In a previous edition of this newsletter (9/07), Bryan Endres provided background on the regulatory process for biotech crops, and discussed the requirements that must be met before USDA-APHIS deregulation of a transgenic crop (allowing for commercial production), and how the National Environmental Policy Act (NEPA; 7 C.F.R. § 372.5(b)) is implicated in that procedure.   Indeed, the venerable NEPA, enacted well before the advent of transgenic organisms, continues to play the dominant role in recent cases.  Overall, 2008 could reasonably be proclaimed a banner year for anti-biotech groups, who were rewarded with favorable court decisions related to several crops. 

 Sugar Beets

 In January, the Center for Food Safety (CFS), along with the Organic Seed Alliance, the Sierra Club, High Mowing Seeds and Earthjustice, filed suit against USDA for approving Monsanto’s herbicide-resistant ‘Roundup Ready’ sugar beet for commercial use without first conducting the appropriate environmental review (EIS), in violation of NEPA and the Plant Protection Act (Center for Food Safety v. Connor, Docket No. 3:08-CV-00484-JSW, N.D. Cal.)  CFS and its co-plaintiffs sought to enjoin planting of the new transgenic sugar beets, alleging that pollen from the crop would contaminate conventional and organic sugar beet fields.

 In a setback for producers of biotech crops, a federal judge ruled in August that Monsanto and other interested parties could not intervene in the initial phase of the lawsuit examining whether APHIS had violated NEPA by deregulating the transgenic sugar beets.  The judge reasoned that these parties couldn’t intervene in the merits portion of the case, as they were not responsible for the actual deregulation of the crop.  The plaintiffs hailed the ruling, claiming that it would prevent Monsanto from pouring its considerable resources “unfairly” into the legal process.  However, the judge in CFS v. Connor did rule that if APHIS is found to have violated NEPA, then Monsanto and other parties would be allowed to intervene during the remedies phase of the case, as the outcome would directly affect their interests.

 Biotech Grasses

In the 9/07 newsletter, Bryan Endres discussed the ruling in a case where APHIS’ approval of field trials of genetically engineered Roundup Ready grasses (creeping bentgrass, Kentucky bluegrass) was challenged (International Center for Technology Assessment v. Johanns, 473 F. Supp. 2d 9 (D.D.C. 2007)).  The transgenic grasses are owned by Scotts Grass Company using Monsanto’s patents.  The court vacated APHIS’ denial of a noxious weed petition for the grasses, and granted summary judgment on plaintiffs’ NEPA-based claims alleging that APHIS failed to properly assess potential impacts of field trials.  Prior to the lower court’s ruling, Scotts intervened in the case.  Although USDA itself declined to appeal the decision, Scotts did appeal, challenging plaintiffs’ ability to bring the case as well as the lower court’s decision.  However, in March of 2008, the Court of Appeals for the District of Columbia Circuit granted plaintiffs’ motion to dismiss, and tossed out Scotts’ appeal (Scotts v. ICTA et al., Docket No. 07-5238 (D.C. Cir. March 17, 2008)).    

 Predictably, the decision was hailed by CFS, which is ICTA’s sister organization and a leading player in anti-biotech litigation.  Beyond its significance as yet another NEPA-based court victory, Scotts provides a legal precedent potentially limiting the ability of biotech companies to intervene in cases that challenge the actions of regulatory agencies, once those agencies are no longer involved in the case.  As Andrew Kimbrell, CFS Executive Director, put it: “The Court’s dismissal of Scotts’ appeal sends a strong signal to Scotts, Monsanto and other corporations that they will not be permitted to prolong litigation after the government has conceded defeat.”

Alfalfa

In September, the Ninth Circuit Court upheld a California district court’s injunction (Geertson Seed Farms v. Johanns, 2007 WL 518624 (N.D. Cal. Feb. 13, 2007)) on all planting of Roundup Ready alfalfa seed, on essentially procedural grounds (Geertson Seed Farms v. Monsanto, 9th Cir. 2008, No. 07-16458).  In Geertson v. Johanns, the district court had ruled that APHIS violated NEPA by failing to require a full EIS.  In their appeal, neither the government nor the intervenors (Monsanto and it’s licensee, Forage Genetics, Inc.) questioned the existence of a NEPA violation.  Rather, they disputed the scope of the injunction, and claimed that the district court should have held a further evidentiary hearing before issuing a permanent injunction.

 In affirming the lower court’s decision, the Ninth Circuit determined that the injunction had been appropriately entered using a traditional balancing test, and that a further evidentiary hearing would have been effectively redundant with what APHIS must now do in an EIS.  However, in a sharply worded dissent, Judge N. Randy Smith argued that the district court’s failure to conduct an evidentiary hearing prior to issuing the permanent injunction (as was required, in Judge Smith’s view, by FRCP 65), should have been cause to remand the case to the district court.  

 Had the case been remanded for a full evidentiary hearing, would the outcome have been different?  It’s impossible to know, but the Geertson plaintiffs may have been fortunate that the 9th Circuit decision preceded a U.S. Supreme Court ruling of only a few months later (Winter v. NRDC, S.Ct. No. 07-1239 (2008)).  Winter had national defense implications, and perhaps in part for that reason, the Court felt obliged to strongly reiterate a standard requiring that injunctive relief in environmental protection cases be based on hard evidence that irreparable environmental or economic injury is likely.  It is quite possible that, in future, Winter will raise the bar for injunction-seeking anti-biotech plaintiffs.

 Significantly, Geertson v. Monsanto effectively affirmed the appropriateness of considering socioeconomic concerns (e.g., potential genetic contamination of organic and conventional alfalfa) in granting injunctive relief.  The Geertson cases reinforce the continued erosion of a formerly prevailing regulatory assumption:  that organic and conventional producers must themselves bear the burden of segregating their crops from biotech crops grown nearby, if contamination with transgenic material (e.g., via pollen drift) is of concern (see the 9/07 newsletter article for background on this issue).  Further, it is possible to read into the court’s language concerning environmental harms, an indirect implication of potential legal liability for farmers and biotech companies. 

 The two Geertson cases highlighted another aspect of recent anti-biotech suits spearheaded by environmental groups: the inclusion of organic and/or conventional growers as co-plaintiffs.  For example, the consortium of plaintiffs in Geertson v. Johanns included Geertson Seed Farms, Trask Family Seeds, CFS, Beyond Pesticides, Cornucopia Institute, Dakota Resource Council, National Family Farm Coalition, Sierra Club, and Western Organization Of Resource Councils. This approach may provide the public relations advantage of enhancing public sympathy and making biotech companies look like bullies attempting to force their product on reluctant farmers.  It also may be an effective “divide and conquer” strategy, creating a rift between organic/conventional and biotech crop growers.  The spectre of claims arising between growers for genetic contamination, with liability based on nuisance and/or trespass precedents, not only may have a chilling effect on future biotech crop registration efforts, but also has the potential to create acrimonious relationships within large producer organizations. 

 Internal conflicts have been handled differently by various commodity groups.  For example, the National Alfalfa & Forage Alliance (NAFA) has been highly proactive in promoting a “coexistence strategy” for the different types of growers, and last year produced a series of documents addressing coexistence issues relevant to organic alfalfa seed and hay producers, as well as alfalfa seed and hay exporters.  Transgenic wheat, on the other hand, has been a contentious topic within the industry for years, despite the firmly pro-biotech stance of the National Association of Wheat Growers (NAWG).  Until recently, NAWG’s position contrasted with that of U.S. Wheat Associates, an export-focused cooperative which warned of the loss of wheat export markets if Monsanto’s Roundup Ready wheat were to be released.  However, it appears that the industry  has started to unite and move towards  advocacy of transgenic wheat, especially if workable export stewardship policies (e.g., effective segregation of transgenic and conventional crops) can be established.

 Biotech Crop Planting Enjoined in a Wildlife Refuge

In a very recent decision (Delaware Audubon Society v. U.S. Department of Interior, 2009 U.S. Dist. LEXIS 24746), a federal district court ordered the U.S. Fish & Wildlife Service to stop allowing growers to plant transgenic corn and soybean crops on the Prime Hook National Wildlife Refuge in Delaware.  Plaintiffs claimed that FWS had entered into cooperative farming agreements with private growers, without the required NEPA review and contrary to FWS’ policy prohibiting biotech crops.  The ruling blocks future farming operations on the refuge until compatibility determinations required by the National Wildlife Refuge System Administration Act as well as NEPA assessments have been completed.  The ruling is significant because, although limited to the Prime Hook refuge, it may serve as a model for similar litigation at the many other national wildlife refuges where transgenic crops are currently being grown.  It also may serve as an indication that the arena for anti-biotech crop litigation may soon be expanding from primarily on-farm considerations and NEPA suits, to natural areas potentially impacted by nearby biotech crop production, possibly with potential for citizen suits based on the Clean Water Act, Resource Conservation and Recovery Act, etc.

Guy R. Knudsen is Professor of Microbial Ecology & Plant Pathology at the University of Idaho, and a private practice attorney in environmental law.  You may contact him via e-mail at gknudsen@uidaho.edu.

 

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