Supreme Court on Modified Foods: Who Won?



A lawyer friend of mine who once served as a small claims magistrate said he knew he had handed down a fair ruling when both parties came away a little mad at him.

I don't know what he would think about yesterday's 7-to-1 Supreme Court decision to nullify a lower court ruling that imposed a nationwide ban on the planting of genetically modified (GM) alfalfa—the high court's first ruling on a GM crop. Both Monsanto, which produces GM alfalfa and was trying to have the ban overturned, and the environmental groups and seed company that supported the ban came away ecstatic.

"Monsanto and farmers in the United States are thrilled with this decision, which is far-reaching in its look at the regulatory framework that should govern biotech crops," David Snively, Monsanto's general counsel, said in a conference call.

But in a press release, Andrew Kimball, executive director of the Center for Food Safety, said, "The Justices' decision today means that the selling and planting of Roundup Ready Alfalfa is illegal. The ban on the crop will remain in place until a full and adequate Environmental Impact Study is prepared by USDA and they officially deregulate the crop. This is a year or more away according to the agency, and even then, a deregulation move may be subject to further litigation if the agency's analysis is not adequate. In sum, it's a significant victory in our ongoing fight to protect farmer and consumer choice, the environment, and the organic industry."

Even though Monsanto technically won, the most important parts of the lower court's decision were upheld.

So who won?

On balance, victory goes to those who oppose GM crops. Here's why.

The case dates back to 2007, when a judge in San Francisco ruled that the United States Department of Agriculture (USDA) erred when it approved the planting of alfalfa that was modified to survive applications of Monsanto's Roundup herbicide that would kill competing weeds. The judge said the law required the USDA to first conduct a full environmental study, which it had not done. Then he went one step further and imposed a nationwide ban on planting GM alfalfa. One of the plaintiffs in the case, Geertson Seed Farms, claimed that the GM alfalfa could cross-pollinate with its organic alfalfa, making the resulting seeds unsalable in countries that forbid the growing of GM crops.

The Supreme Court agreed with Monsanto (and the Obama administration, which interceded in the case on Monsanto's behalf) that the original judge had indeed erred, but only because he imposed such a drastic ban. "The district court barred the agency from pursuing any deregulation—no matter how limited the geographic area," Justice Samuel Alito wrote in the majority opinion.

Even though Monsanto technically won, the most important parts of the lower court's decision were upheld, meaning there are still many regulatory hurdles GM alfalfa has to clear before it can be legally planted on a commercial scale. And in a decision that may have wide-reaching effects on future GM cases, the justices agreed that GM crops could cause environmental harm through cross-pollination.

Alito wrote, "Virtually no RRA (Roundup Ready Alfalfa) can be grown or sold until such time as a new deregulation decision is in place, and we also know that any party aggrieved by a hypothetical future deregulation decision will have ample opportunity to challenge it, and to seek appropriate preliminary relief, if and when such a decision is made." In essence, he said the ban was unnecessary.

"It's a very important decision. I'm just thrilled about it," said Phillip Geertson, owner of the farm that filed the suit, in a telephone interview. "Now Roundup Ready alfalfa is regulated, and it can't be sold until they deregulate it. And the court made it clear that we can legally challenge the USDA if they decide to do that."

The USDA expects to unveil its final decision next spring, plenty of time before the planting of the 2011 alfalfa crop. But that also leaves plenty of time for further legal maneuvers to stop the crop from going in.