Preliminary Injunction Prevents the sale of Roundup Ready Alfalfa Seed

Mark Renz, Extension Weed Scientist

A recent court case brought against the United States Department of Agriculture - Animal and Plant Health Inspection Service (USDA-APHIS) has resulted in the temporary banning of the sale of Roundup Ready alfalfa seeds (as of March 12^th, 2007).  If seed has already been bought, growers have until March 30^th (2007) to plant the seed.  This timing essentially prevents Midwestern alfalfa producers from planting Roundup Ready alfalfa this spring.  The decision does NOT prohibit growers from the harvesting, using or selling any Roundup Ready alfalfa that has already been planted and is established.  This injunction is temporary and a final ruling is expected from the judge later this summer.  Below I will try to summarize the court case to date.  I urge interested readers to download the judge’s decisions as they provide the best explanation as to why he made this decision.  Most of the information from this article is summarized from these two rulings.  They can be found at:

2-23-07 ruling.pdf

3-12-07 ruling.pdf

BACKGROUND

The case was filed in the United States District Court for the Northern District of California by an alfalfa grower and other plaintiffs who sued the USDA-APHIS on the grounds that they did not follow proper procedures of the National Environmental Protection Act (NEPA).  Specifically they argued that the Environmental Analysis (EA) that was conducted by USDA-APHIS was not adequate and that an Environmental Impact Statement (EIS) should have been conducted. A short review of each position and the judge’s decision is summarized below.

PLAINTIFF’S ARGUEMENT

  In this lawsuit the plaintiffs challenged USDA-APHIS’ decision to deregulate Roundup Ready alfalfa as they claim that this could decrease or eliminate all non-genetically engineered alfalfa varieties.  It is known that alfalfa pollen is disseminated by bees and can travel in excess of 2 miles.  This in combination with the fact that most of alfalfa seed is grown in limited geographic areas within a few states produces the potential for contamination of non-resistant varieties IF Roundup Ready alfalfa varieties are grown nearby.  Plaintiffs argue that this “contamination” of organic and conventional crops will have negative economic and socioeconomic effects on farmers, especially, organic farmers.  These farmers, the plaintiffs argue, will no longer be able to market their forage and seed as non-genetically engineered. Similarly, organic livestock producers will have a more difficult time purchasing non-genetically engineered alfalfa.

DEFENSE’S ARGUEMENT

APHIS acknowledges that once Roundup Ready alfalfa was deregulated it could not ensure that farmers using the genetically engineered seed would be more than two miles away from seed farmers who don’t want to grow engineered alfalfa. However, USDA-APHIS concluded that the introduction of Roundup Ready alfalfa would have no significant environmental impact because organic production operations have distinct, defined boundaries and buffer zones to prevent unintended contact with prohibited substances (in this case modified genes). USDA-APHIS also argued that in the United States there isn’t regulation against the presence of GMO’s in organic crops, it is just illegal to use transgenic seed.  Organic crops that are exported are tested and have specific thresholds that must be met for a crop to qualify as organic, but USDA-APHIS argued that a contamination of a transgenic gene would not likely to surpass tolerance levels (1% in Japan).

THE DECISION

After hearing arguments, the judge declared that USDA-APHIS violated the National Environmental Protection Act (NEPA) by failing to prepare an EIS before deregulating Roundup Ready alfalfa.  Specifically, the judge felt the plaintiffs made a convincing argument that the deregulation of Roundup Ready alfalfa without any geographic restrictions could lead to the transmission of the engineered gene to organic and conventional alfalfa.  The judge also voiced his concern as to how farmers can protect their crops from acquiring the genetically engineered gene, if it is not desirable.  The judge also felt that the introduction of Roundup Ready alfalfa would contribute to the development of Roundup-resistant weeds.

The initial ruling in favor of the plaintiffs was delivered on February 23^rd.  After this decision, other parties involved with Roundup Ready alfalfa have become involved in the case and provided additional information to the court.  While the court is currently reviewing this information, the judge felt it prudent to provide some guidance as many growers are preparing to plant Roundup Ready alfalfa this spring.  This is why he entered an additional ruling on March 12^th which banned the sale of Roundup Ready alfalfa seed to date.  While no specific date for a final decision has been made, a final decision is expected sometime this summer.