Biotech Alfalfa Ban Questioned

The Supreme Court heard oral arguments on April 27 in a case that involves a dispute over genetically modified alfalfa. At issue is whether a lower court erred by imposing a ban on the planting of the genetically modified crop in 2007, pending the completion of an environmental impact statement by the Department of Agriculture. Such statements are required under the National Environmental Policy Act (NEPA).

The case, Monsanto et al. v. Geertson Seed Farms et al., is significant because it is the first time that the high court has heard arguments involving a biotech crop. Its outcome will also determine whether such injunctions will be allowed when NEPA is violated.

During the arguments, biotech company Monsanto claimed that when the lower court imposed the ban, it failed to show that planting alfalfa that is genetically modified to tolerate the herbicide Roundup would likely cause "irreparable harm." Monsanto attorney Gregory Garre of Latham & Watkins stressed that the injunction is too broad and that the lower court did not consider USDA's interim solution, which would have allowed farmers to plant Roundup Ready alfalfa with certain restrictions.

At a postargument forum hosted by the Environmental Law Institute, Garre also noted that the possibility of cross-pollination between genetically modified alfalfa and conventional strains is extremely low because "99% of alfalfa is grown for hay, which is mowed before flowers are created."

Environmental activists and organic farmers, however, claim that cross-pollination has already occurred from Roundup Ready alfalfa that was planted for seed on more than 220,000 acres before the injunction. They argue that such contamination will devastate organic and export markets.

George Kimbrell, an attorney with the Center for Food Safety, who represented the plaintiffs in the case, likened Roundup Ready alfalfa to an invasive species. "This is a quintessential environmental harm that gets out into nature. The economic injury stems from the permanent modification created by these new plants that proliferate in the environment," he said.

The Supreme Court is expected to rule on the case before its recess in late June.