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How the media got GM alfalfa wrong

1.How the media got GM alfalfa wrong - Lisa J. Bunin
2.U.S. Supreme Court Issues Decision in Monsanto case - Berkeley Law

NOTE: Here's the spin on the recent Supreme Court decision c/o Monsanto & co, in this case in the words of the pro-GM lobby group Truth About Trade: "In the Supreme Court's first-ever ruling on genetically modified crops, the justices issued a resounding decision in favor of biotechnology. The Supreme Court overturned a lower court.s decision to impose a nationwide ban on GM alfalfa. The Supreme Court is famous for its 5-4 split decisions, especially in cases that generate political controversy. The alfalfa ruling, however, was no nail-biter. The justices ruled 7-1 in favor of biotechnology." The truth is very different as the following two pieces show.
1.How the media got GM alfalfa wrong
Lisa J. Bunin
June 24 2010

(With all the confusion around about the recent Supreme Court ruling, we wanted to share this missive from Lisa J. Bunin, Ph.D. of the Center for Food Safety. Anna & Kate)

The media got it wrong and let the public down when it erroneously reported Monsanto's wholesale victory in its Supreme Court appeal of the GM alfalfa case ”” the first-ever Supreme Court case on GMOs (Monsanto Co. v Geertson Seed Farms). Despite claims and headlines to the contrary, Monsanto is still prohibited from selling and planting its Roundup Ready GM alfalfa. The true victors in the case are farmers, consumers and environmentalists who have argued that planting GM alfalfa would contaminate conventional and organic crops and lead to spraying noxious pesticides in regions where over 90% of alfalfa farmers do not use or need them.

So, why did the press get it so wrong? Monsanto hit the press early and convincingly and the press failed to do its due diligence by corroborating Monsanto’s facts with both sides in the case. It should have known better and acted more carefully despite the rush to get the first story published, but it didn’t. Monsanto's Goliath PR machine succeeded in framing the Supreme Court decision as a slam dunk in its favor, to head off a drop in its stock market price. The real news ”” that it still can’t sell its patented GM alfalfa ”” would surely have driven impatient investors to sell their stocks.

Not surprisingly, shortly after the publication of multiple stories announcing Monsanto’s unequivocal win, an alternative narrative began to circulate on the web and people started asking questions about whether Monsanto actually “won” the case and what it meant to “win” the case anyway. Fulfilling the role of David against Goliath, bloggers exposed how the rightful victors had been unfairly slain by the press due to the unsavory alliance between the Goliath biotech giant and the major media.

The answer to the question of “who really won the case,” requires examining on what grounds Monsanto appealed to the Supreme Court. Specifically, Monsanto asked the court to reconsider the lower court decision in the GM alfalfa case by: (1) lifting the injunction on GMO alfalfa, (2) allowing the planting and sale of GMO alfalfa, and (3) not allowing contamination from GMO crops to be considered “irreparable harm.”
In truth, the Court only ruled on Monsanto’s first request, which it affirmed by stating that the injunction was too broad to be allowed to remain in place. However, it ruled in favor of the farmers and Center for Food Safety on the two other remaining issues, which in many ways are even more important. First, the Court did not overrule the lower court’s ban on the planting and sale of GMO alfalfa and, therefore, the ban remains intact. Moreover, the Court’s decision to set aside the injunction was based, in part, on the fact that a prohibition on GMO planting was already in effect, due to the lower court’s ruling and, therefore, the injunction was duplicative overkill. Second, the Supreme Court agreed with the lower court that the threat of GMO contamination was a sufficient cause of environmental and economic harm to support future challenges on GMOs. Unfortunately, these critical details about the Supreme Court’s decision were omitted in early press accounts, making it
look as though Monsanto prevailed in its quest to deregulate GM alfalfa.

Two and three days later, the real story about the outcome of the GM alfalfa Supreme Court case has emerged in some press accounts. Yet, any analysis about the need for civil society to demand greater corporate accountability in the face of government inaction to halt threats of GMO contamination has yet to surface in the mainstream media. Clearly, the greatest significance of this case is that it shows how Goliath corporations, like Monsanto, BP and the rest, can be held accountable for their actions by members of civil society who have the courage to take on the role of David in the battle to protect our environment and food supply.

# # #

Lisa J. Bunin, Ph.D. is the Organic Policy Coordinator at the Center for Food Safety, a national, non-profit, membership organization, founded in 1997, that works to protect human health and the environment by curbing the use of harmful food production technologies and by promoting organic and other forms of sustainable agriculture.
2.U.S. Supreme Court Issues Decision in Monsanto case
Legal Planet (Berkeley Law/UCLA), June 21 2010

The U.S. Supreme Court handed down its decision today in Monsanto v. Geertson Seed Farms,   a case involving Monsanto’s efforts to introduce Roundup Ready Alfalfa, a genetically modified crop engineered to tolerate the herbicide Roundup.   The Court, on a 7-1 vote (Stevens dissenting, Bryer recused), held in favor of Monsanto but did so in a way that leaves standing a lower court decision preventing Monsanto from introducing the alfalfa crop until the government complies with the National Environmental Policy Act (NEPA).  The Supreme Court decision  has much less to do with environmental law and much more to do with the remedies the plaintiffs sought and whether an injunction issued by the district court was too broad.  Here’s the background.

In introducing a new type of plant, Monsanto must comply with the Plant Protection Act.  The PPA gives authority to the Department of Agriculture to issue regulations “to prevent the introduction of plant pests into the United States or the dissemination of plant pests within the U.S.”  The Dept of Ag, through the Animal and Plant Health Inspection Service (APHIS), has used its authority to regulate genetically engineeered plants by presuming that such plants are plant pests under the PPA.   One provision of that regulation allows a person or company seeking to introduce a genetically engineered plant into the environment to petition to avoid regulation under the statute.  That’s what Monsanto did.  The APHIS, under the Bush Administration, granted the petition after conducting a required environmental analysis under NEPA and finding that the introduction of the roundup ready alfalfa would have no signficant environmental impact.

Two conventional alfalfa farmers and environmental groups sued the Secretary of Agriculture challenging the decision to deregulate the genetically engineered alfalfa.    The farmers’ fears were that the genetically engineered crops could contaminate the conventional crops.  In addition, conventional farmers point to evidence that crops engineered to tolerate herbicides are leading to a huge increase in pesticide use as weeds are developing pesticide resistance.  While the case was intially pending in District Court, the RRA was commercially available and not regulated and was planted by about 3000 farmers across the country.

The district court found in favor of the farmers and environmental groups on the grounds that the Department of Agriculture violated NEPA.  The court held that government should not have found that the introduction of the roundup ready seeds had no environmental impact.    Importantly, that finding ”” that the government violated NEPA ”” remains in tact and was not challenged on appeal.

At issue on appeal were two main questions.  One had to do with whether the conventional alfalfa farmers were the proper parties to sue ”” in legal parlance had “standing” under Article III of the U.S. Constitution.  The U.S. Supreme Court said yes.    Relatedly, the Court also said that Monsanto had standing to participate in the court case.

The second part of the decision involved a technical question about the scope of the district court decision to prevent the government from granting Monsanto’s petition to deregulate its alfalfa seeds.  The Supreme Court found that the district court had issued an injunction that was too broad:  the injunction prevented the government from granting a petition without preparing a full environmental impact report (EIR) not only for complete deregulation (where Monsanto could sell and/or plant its crops nationwide) but also for partial deregulation for, say, a very limited pilot project nowhere near other conventional alfalfa crops.   The Court said that it was possible that Monsanto could propose some limited “partial” deregulation that would not require a full blown EIR but that the District Court opinion would prohibit such a possibility.

Neverthless, the Court decision does not alter the current status quo, which is that “virtually no RRA can be grown or sold until such time as a new deregulation decision is in place.”  That’s because the intial APHIS decision not to prepare a full Environmental Impact Statement was vacated by the district court.  Until the APHIS completes its review under NEPA the genetically engineered alfalfa cannot be sold or grown.

In short, the decision issued today is    really a narrow procedural win for Monsanto and the government and a victory for the plaintiffs on standing grounds.  The real action will now be at the administrative level as the APHIS engages in its environmental review and decides whether to issue a decision deregulating the alfalfa seeds.    Today’s decision could also have an impact on cases challenging the introduction of other genetically modified crop.    For example, genetically modified sugar beets are the subject of a case currently pending in Northern California. In that case the judge has held that APHIS vioated NEPA but has denied organic farmers and the Sierra Club a preliminary injunction banning the selling and growing of genetically engineered sugar beets.  His decision about whether to issue a permanent injunction ”” which he has said he is inclined to grant ”” is still pending and could be affected by today’s decision.