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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About Guy Knudsen

Guy R. Knudsen, gknudsen@gknudsenlaw.com
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