In a decision that is being hailed by anti-GMO activists as precedent-setting, a U.S. District Court judge in San Francisco delivered a stinging rebuke to the U.S. Department of Agriculture on Feb. 14, ruling that the USDA had erred in not conducting a full environmental impact statement (EIS) on the possible consequences of introducing genetically modified "Roundup Ready" alfalfa into commercial production.
The 20-page decision makes for fascinating reading. Judge Charles Breyer (the brother of Supreme Court Justice Stephen Breyer), shreds the USDA's rationale for skipping the EIS with a level of precision that puts to shame any number of press releases from advocacy organizations.
The key issue was not whether GM alfalfa, modified by Monsanto to be resistant to Monsanto's Roundup herbicide, might be unhealthy for human consumption. Breyer noted that legal precedent required him to respect the decision by the USDA's Animal and Plant Health Inspection Service that Roundup Ready alfalfa was "harmless" to humans. Instead, Breyer drilled down on the crucial issue of how the introduction of GM alfalfa was likely to affect the economic livelihood of organic farmers whose crops would risk being contaminated by GM alfalfa. The likelihood of such contamination is inevitable, as the government conceded during its testimony.
The USDA offered up a fat platter of reasons for ignoring the potential woes of organic farmers. Economic impacts on farmers did not constitute an "environmental" problem, argued its lawyers. By law, organic farmers bore their own responsibility for proving that their production methods were untainted by non-organic influences. The very word "organic" did "not necessarily" mean that a product had to be 100 percent GM free. But most important, since the gene that provided Roundup resistance had already been determined to be "harmless," there could be, by definition, no "significant" environmental impact.
Judge Breyer found these excuses to be "wholly inadequate." His reasoning in each instance makes for compelling reading. But perhaps the most important passage is this:
For those farmers who choose to grow non-genetically engineered alfalfa, the possibility that their crops will be infected with the engineered gene is tantamount to the elimination of all alfalfa; they cannot grow their chosen crop. The government's apparent belief that the farmers' and consumers' choice is irrational because the engineered gene is similar in all biological respects to a gene found in nature (although never in alfalfa) is beside the point. An action which potentially eliminates or at least greatly reduces the availability of a particular plant -- here, non-engineered alfalfa -- has a significant effect on the human environment.
Individual consumers have many reasons for choosing to purchase organic food. Some may do so in support of a slow-food, buy-local policy that is embedded in carefully worked-out theories of sustainability. Some may do it for perceived health benefits, or just because they like the flavor. Or maybe they do it out of a rebellious impulse to stick it to big agribusiness corporations.
Who cares? The reason isn't important. If we do indeed live in a free society, we get to make our own decisions as to what we put in our bodies. If a commercial entity's activities interfere with that freedom, aren't our rights as a consumer being infringed? In a thoroughly capitalist society based on satisfying (and creating) consumer needs, what sin could be more evil than the denial of choice?
The rhetoric of the debate over GM crops might be different if one did not get the strong sense that regulatory authorities in the U.S. are much more eager to do the bidding of a Monsanto than they are of the general public. It is instructive here to take a look at policy in the Scandinavian nations, which appear to be light-years ahead of the U.S. in worrying about how to properly manage the problem of "coexistence" between genetically modified and organically farmed crops.
Denmark already has in place a comprehensive set of laws and regulations that mandate how far apart organic crops and GM crops must be from each other, the percent of GM content allowable in an organic crop before it is deemed contaminated, and whether or not GM farmers are liable for contamination of neighboring crops (if they follow the rules, they are not liable). Denmark has even set up a compensation fund for farmers who suffer economic losses as a result of contamination, although the general consensus in the Nordic region is that eventually insurance markets will fill that role.
Denmark's rules will not satisfy the anti-GM activist or organic farmer who demands 100 percent purity or believes that inserting a gene from one species of plant or animal into another is a crime against nature. But for those of us who can live with a little imperfection in our lives, the rules, from a distance, seem like a pragmatic, sensible attempt to balance competing interests and come up with a fair solution for all.
Reading Judge Breyer's decision, one does not sense that the USDA's Animal and Plant Health Inspection Service is interested in balancing interests. And to be frank, one doesn't have much faith that a full environmental impact statement carried out by this same agency will come to any different conclusion than they already have. This is an issue that is going to be fought tooth and nail in the courts for the foreseeable future, and the decision by one lifelong San Francisco native appointed to the federal judiciary by Bill Clinton may not stand forever. That's too bad, because it is an abdication of government's proper role not to try to come up with a comprehensive solution that makes enough compromises to keep the organic farmers of Northern California (and elsewhere) happy while simultaneously allowing innovation and scientific progress to continue.