With the decision last week to deregulate Roundup Ready alfalfa, farmers who have grown Roundup Ready sugarbeets are watching USDA for a decision and the federal appeals court for a hearing later this month.
Groups on both sides of the sugarbeet battle, including USDA, have filed briefs with the Ninth Circuit Court of Appeals in San Francisco over a federal judge’s order late last year demanding USDA destroy 256 acres of Roundup Ready sugarbeet seedlings, typically called stecklings. A hearing before a Ninth Circuit panel on the judge’s ruling is set for Feb. 15.
USDA officials are expected to decide as early as this week on how the 2011 crop will be treated. USDA announced options in November that included not allowing any planting of Roundup Ready sugarbeets, partially deregulating the crop with restrictions, or requiring permits for the entire Roundup Ready sugarbeet crop, which could be roughly 1.1 million acres. USDA continues to follow a court order to prepare an environmental impact statement that likely won’t be finished until at least May 2012, said Luther Markwart, executive director of the American Sugarbeet Growers Association. Markwart said farmers are waiting to see how USDA will treat this year’s plantings.
“We fully expect an announcement this week,” Markwart said. “And that’s how we would operate until the full EIS is completed.”
Originally, the Center for Food Safety, along with other environmental and organic groups, filed a lawsuit against the deregulation of Roundup Ready sugarbeets. After a federal judge ruled USDA’s Animal and Plant Health Inspection Service did not properly follow an environmental law, groups pushed for a court order to block all planting of Roundup Ready sugarbeets in 201l, or until USDA completes an environmental impact statement. Groups then took USDA back to court last fall after APHIS granted a permit for companies to plant the stecklings, which would be needed to potentially grow Roundup Ready sugarbeets in the 2012 crop. Seeds have already been produced for 2011 if the crop is determined eligible for planting.
Roundup Ready sugarbeets had been deregulated by USDA in 2005. In fact, roughly 95 percent of the nation’s sugarbeet crop, more than 1.1 million acres, were planted in the Roundup Ready variety last year, reflecting one of the highest usage rates of a biotech crop variety by farmers. In its court filing on Monday, Monsanto noted that plaintiffs suing to stop Roundup Ready sugarbeets failed to find a single documented incident of harm to anyone or that any organic farmer lost organic certification — or even a single sale — in the five years Roundup Ready sugarbeets were deregulated and grown without any restrictions.
In its response, USDA also noted that the organic and environmental groups that filed the case “never describe any harm” from the stecklings. Instead, the groups “speculate about future harms from potential agency actions that have not yet occurred,” USDA stated. Further, because the plaintiffs have not established any harm or suffering, they lack standing in the case.
Several organic groups and businesses filed a friend-of-the-court brief last week supporting the Center for Food Safety, arguing that a biotech variety of Roundup Ready sugarbeets would create an “imminent threat of unwanted biotech contamination” for their industry. The groups argue that they have been harmed by other cross-contamination of biotech crop varieties. Further, they argue that USDA and Monsanto continue to violate the law by growing illegal Roundup Ready stecklings.
If USDA, Monsanto and other companies involved in biotech sugarbeets were to continue producing them, “the economic and environmental harms would strike swiftly and severely. Farmers’ freedom of choice to grow organic or non-GE crop varieties would be compromised; organic businesses would lose their hard-earned ability to market and sell credibly-sourced organic products; and consumers’ freedom of choice to avoid GE foods would be eliminated.”
The Center for Food Safety has frequently referred to Roundup Ready sugar beets as “illegal,” but USDA and Monsanto both note that once the district court vacated the APHIS order that deregulated the crop, Roundup Ready sugar beets again became a regulated crop and not “illegal.”
“If APHIS determines that a genetically-engineered crop does not pose a plant pest risk, then it can ‘deregulate’ the crop,” USDA stated.
Phone calls by DTN to the Center for Food Safety this week were not returned.
Plaintiffs knew in 2006 that the majority of sugarbeet producers had converted to Roundup Ready sugarbeets, but waited until 2008 to file their case. Further, plaintiffs don’t argue they are likely to suffer any harm from the steckling fields or permits that would allow further production of Roundup Ready sugarbeets.
Rather than destroy the stecklings, Monsanto argues that a more narrowly tailored court order could avoid any genuine concern of cross-pollination. Instead, “Plaintiffs defend the district court’s far more draconian solution by insisting that the stecklings must be destroyed to eliminate what they perceive as bureaucratic momentum towards eventual deregulation.”
Monsanto also argued that the Supreme Court’s decision last year in the alfalfa case stated that even if a court vacated a USDA decision to deregulate a crop, that “did not bar continued planting” as a regulated crop under a permit from APHIS. Thus, the steckling permits “are precisely the sort of interim agency action contemplated” in the alfalfa case.
Yet, Monsanto states that a deregulatory decision from APHIS “might never occur, and if they did occur could come with a wide variety of geographical, cultivation, and handling restrictions.” But those type of restrictions were proposed by USDA for alfalfa, leading to a wave of complaints from the biotech industry and a congressional hearing before USDA reversed course last week.
“Until or unless APHIS took further action, plaintiffs could not prove that (Roundup Ready sugarbeets) would be grown in geographic proximity to their lands … or that the conditions under which it is grown would create a material risk of cross-pollination.”
Further, Monsanto notes that the steckling fields under the permit “will not flower and cannot produce any pollen and thus could not cross-pollinate any crops even if the fields were not isolated.”
Monsanto makes the key argument that the plaintiffs fail to indentify that any plaintiff in the case would suffer irreparable harm. Instead, the court granted an injunction based on potential harm that could come from deregulation.
The organic and environmental groups have highlighted problems of cross-pollination to non-biotech crops in canola, rice, corn and bentgrass from biotech varieties. But USDA cites that even if those allegations are correct, they have no bearing on the current issue regarding sugarbeets.
Chris Clayton can be reached at firstname.lastname@example.org
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Posted with DTN Permission by Haylie Shipp