A Supreme Court Tie Goes to Greens on Genetically Modified Crops

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Not the alfalfa the Supreme Court ruled on

Given that it’s World Cup month, even soccer-phobic Americans are getting into football of the non-padded variety. Part and parcel with the World Cup sporting experience—especially in the first round of  matches—is an acceptance of ties. Ties are not something we like to do in American sports, especially in baseball, where two cellar-dwelling teams—like the Milwaukee Brewers and Chicago White Sox of 1984—could keep playing for a record-setting 25 innings to decide an almost completely meaningless regular season game. But in World Cup football, a tie can mean something very different to the two sides—as anyone following the wildly different national reactions of the U.S. and England after their 1-1 match would have soon realized. (Which gives me another chance to link to Lego football.)

Now environmentalists are claiming victory over the equivalent of a Supreme Court tie in the body’s first ruling on biotech crops. This morning the Supreme Court overturned a lower court’s ban on the planting of genetically engineered alfalfa seeds that had been modified to resist Monsanto’s Roundup herbicide. The original 2007 ruling, by a federal district judge in San Francisco, found that the U.S. Department of Agriculture (USDA) had failed to consider the environmental impact before it had approved the GM alfalfa seeds for commercial planting. The district judge canceled the USDA’s approval of the seeds and imposed a national ban on planting them.

But the Supreme Court, in a 7-to-1 decision, found that the lower court judge had gone too far in imposing a national ban. The blanket ban prevented the Agriculture Department from considering a partial approval of the seeds, a process known as deregulation:

“The district court barred the agency from pursuing any deregulation — no matter how limited the geographic area in which planting of RRA would be allowed,” Justice Samuel Alito wrote in the opinion, referring to Roundup Ready alfalfa.

Justice John Paul Stevens was the lone dissenter. Justice Stephen Breyer did not take part in the case because his brother, District Judge Charles Breyer, had handled the case in the district court.

Sounds bad for greens who’ve fought the spread of genetically modified crops because of fears over safety and concerns that agricultural giants—like Monsanto—could use GM seeds to dominate the market. And Monsanto, one of the plaintiffs in the case, saw the ruling as a clear victory for their company and for GM crops:

“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 the decision isn’t so clearcut. Contrary to what Monsanto and other seed companies were saying in the wake of the ruling, the Supreme Court didn’t make a decision on the safety of the GM alfalfa seeds, and left the ban in place for now. That means USDA will still need to rule on the safety of the GM seeds, and though the department completed a preliminary environmental impact statement last year—it found no significant harm—the USDA still needs to go through the more than 200,000 public comments it received on the matter. That is likely to take it until at least next April. It’s possible that the USDA could give approval to limited plantings of GM alfalfa—that’s the deregulation the Supreme Court mentions—but the department’s Animal and Plant Health Inspection Service, which oversees biotech crops, said in a brief statement after the decision that it was aiming for a ruling in time for spring 2011 . “In sum, it’s a significant victory in our ongoing fight to protect farmer and consumer choice, the environment and the organic industry,” said Andrew Kimbrell, executive director of the Center for Food Safety, part of a network of green groups and farmers who had challenged the approval of the GM crop.

Environmentalists were quick to declare victory as well, as Grist blogger Tom Laskawy wrote today:

Despite the news reports claiming victory for Monsanto, the Supreme Court did not overturn the central tenet of the case: that the USDA prematurely approved Roundup Ready alfalfa. The District Court, in effect, made it once again illegal to plant Roundup Ready alfalfa — and the Supreme Court endorsed that ruling. While the Justices did declare that the USDA, if it wants to, has the right to give the seed a preliminary approval (i.e. for limited, restricted planting), the Supreme Court decision does not by itself give Roundup Ready alfalfa the green light.

So who won? The reality is that the Supreme Court decision focused more on legal technicalities and questions of governmental authority, ruling that a district judge had overstepped his bounds by vacating a regulatory action by a federal agency, rather than on the direct question of GM crops. But as Laskawy points out, it’s notable that the Court ruled that environmental harm could include economic effects, like loss of market due genetic contamination. The Court also seems to accept “gene flow,” a central argument among GM opponents who believe that genetically modified materials could infect conventional plants via cross-pollination. (Many organic farmers worry that if GM seeds become widespread, they will contaminate neighboring farms that don’t use them and ruin  the organic farming industry.)

The war over GM crops is going to be a long one—too long to summarize in this post—and the Supreme Court decision is just one battle. The next fight could come over a similar case involving sugar beets modified to resist Monsanto’s Roundup herbicide, where another federal judge in San Francisco ruled last September that the Agriculture Department had failed to fully asses the environmental impact of the crop. That decision remains in limbo—though today’s Supreme Court ruling means that it’s unlikely the judge would issue the same blanket ban tried with alfalfa. Still, someone always wins a bit more when there’s a tie, and this one seems to go to greens, who will go back to fighting GM seeds at the regulatory level—but with additional ammunition