Monsanto's End Run Around that Pesky Judicial Branch of Government

Is Monsanto About to Gain Immunity From Federal Law?

By Alexis Baden-Mayer and Ronnie Cummins, Alternet

07 July 12

hile many Americans were firing up barbecues and breaking out the sparklers to celebrate Independence Day, biotech industry executives were more likely chilling champagne to celebrate another kind of independence: immunity from federal law.

A so-called “Monsanto rider,” quietly slipped into the multi-billion dollar FY 2013 Agricultural Appropriations bill, would require – not just allow, but require - the Secretary of Agriculture to grant a temporary permit for the planting or cultivation of a genetically engineered crop, even if a federal court has ordered the planting be halted until an Environmental Impact Statement is completed. All the farmer or the biotech producer has to do is ask, and the questionable crops could be released into the environment where they could potentially contaminate conventional or organic crops and, ultimately, the nation’s food supply.

Unless the Senate or a citizen’s army of farmers and consumers can stop them, the House of Representatives is likely to ram this dangerous rider through any day now.

In a statement issued last month, the Center For Food Safety had this to say about the biotech industry’s latest attempt to circumvent legal and regulatory safeguards:

Ceding broad and unprecedented powers to industry, the rider poses a direct threat to the authority of U.S. courts, jettisons the U.S. Department of Agriculture’s (USDA) established oversight powers on key agriculture issues and puts the nation’s farmers and food supply at risk.

In other words, if this single line in the 90-page Agricultural Appropriations bill slips through, it’s Independence Day for the biotech industry.

Rep. Peter DeFazio (D-Ore.) has sponsored an amendment to kill the rider, whose official name is “the farmers assurance” provision. But even if DeFazio’s amendment makes it through the House vote, it still has to survive the Senate. Meanwhile, organizations like the Organic Consumers Association, Center for Food Safety, FoodDemocracyNow!, the Alliance for Natural Health USA and many others are gathering hundreds of thousands of signatures in protest of the rider, and in support of DeFazio’s amendment.

Will Congress do the right thing and keep what are arguably already-weak safeguards in place, to protect farmers and the environment? Or will industry win yet another fight in the battle to exert total control over our farms and food supply?

Biotech’s ‘Legislator of the Year’ behind the latest sneak attack

Whom do we have to thank for this sneak attack on USDA safeguards? The agricultural sub-committee chair Jack Kingston (R-Ga.) – who not coincidentally was voted "legislator of the year for 2011-2012" by none other than the Biotechnology Industry Organization, whose members include Monsanto and DuPont.  As reported by Mother Jones, the Biotechnology Industry Organization declared Kingston a "champion of America's biotechnology industry" who has "helped to protect funding for programs essential to the survival of biotechnology companies across the United States."

Kingston clearly isn’t interested in the survival of America’s farmers.

Aiding and abetting Kingston is John C. Greenwood, former US Congressman from Pennsylvania and now president of the Biotechnology Industry Organization. No stranger to the inner workings of Congress, Greenwood lobbied for the “farmers assurance provision” in a June 13 letter to Congress, according toMother Jones and Bloomberg, claiming that “a stream of lawsuits” have slowed approvals and “created uncertainties” for companies developing GE crops.

Greenwood was no doubt referring to several past lawsuits, including one brought in 2007 by the Center for Food safety challenging the legality of the USDA’s approval of Monsanto’s Roundup Ready alfalfa. In that case, a federal court ruled that the USDA’s approval of GMO alfalfa violated environmental laws by failing to analyze risks such as the contamination of conventional and organic alfalfa, the evolution of glyphosate-resistant weeds, and increased use of Roundup.  The USDA was forced to undertake a four-year study of GMO alfalfa’s impacts under the National Environmental Policy Act (NEPA). During the four-year study, farmers were banned from planting or selling the crop – creating that ‘uncertainty” that Greenwood is so worried about.

The USDA study slowed down the release of GMO alfalfa, but ultimately couldn’t stop it. As Mother Jones reports, in 2011, the USDA deregulated the crop, even though according to its own study, the USDA said that “gene flow” between GM and non-GM alfalfa is "probable," and threatens organic dairy producers and other users of non-GMO alfalfa, and that there is strong potential for the creation of Roundup-resistant "superweeds" that require ever-higher doses of Roundup and application of ever-more toxic herbicides. The report noted that two million acres of US farmland already harbor Roundup-resistant weeds caused by other Roundup Ready crops.

In another case – which perhaps paved the way for this latest provision now before the House - the USDA in 2011 outright defied a federal judge’s order to halt the planting of Monsanto’s controversial Roundup-Ready GMO sugar beets until it completed an Environmental Impact Statement. The USDA allowed farmers to continue planting the crop even while it was being assessed for safety on the grounds that there were no longer enough non-GMO seeds available to plant.

Who loses if Monsanto wins this one?

Among the biggest losers if Congress ignores the DeFazio amendment and passes the “farmers assurance provision” are thousands of farmers of conventional and organic crops, including those who rely on the export market for their livelihoods. An increasing number of global markets are requiring GMO-free agricultural products or, at the very least, enforcing strict GMO labeling laws. If this provision passes, it will allow unrestricted planting of potentially dangerous crops, exposing other safe and non-GMO crops to risk of contamination.

As we’ve seen in the past, farmers who grow crops that have been inadequately tested and later found dangerous, or whose safe crops become contaminated by nearby unsafe crops, risk huge losses and potentially, lawsuits from their customers. Ultimately, the entire US agriculture market and US economy suffers.

We have only to look back to the StarLink corn and LibertyLink rice contamination episodes for evidence of how misguided this provision is. In October 2000, traces of an Aventis GM corn called StarLink showed up in taco shells in the U.S. even though the corn had not been approved for human consumption because leading allergists were concerned it would cause food allergies. The contamination led to a massive billion dollar recall of over 300 food brands. The 'StarLink' gene also turned up unexpectedly in a second company's corn and in US corn exports, causing a costly disruption to the nation’s grain-handling system, and spurring lawsuits by farmers whose crops were damaged.

A similar disaster occurred for US rice farmers in 2006. In august of that year the USDA announced that mutant DNA of Liberty Link, a genetically modified variety of rice developed by Bayer CropScience, a then-German agri-business giant, were found in commercially-grown long-grain rice in Arkansas, Louisiana, Mississippi, Texas and Missouri. LibertyLink rice, named for Bayer’s broad-spectrum herbicide glufosinate-ammonium, was never intended for human consumption. Following the announcement of contamination, Japan banned all long-grain rice imports from the U.S., and U.S. trade with the EU and other countries ground to a halt.  Rice farmers and cooperatives were forced to engage in five long years of litigation against Bayer

CropScience in an attempt to recoup some of their losses.

All the other ways this provision is just plain bad

There’s a reason we have laws like the National Environmental Policy Act (NEPA) and the Plant Protection Act of 2000, which was specifically designed “to strengthen the safety net for agricultural producers by providing greater access to more affordable risk management tools and improved protection from production and income loss . . .”. The ‘farmers assurance provision” is a thinly disguised attempt by the biotech industry to undermine these protections. Worse yet, it’s an affront to everyone who believes the US judicial system exists to protect US citizens and public health.

Why should you be outraged about this provision? For all these reasons:

·      The Monsanto Rider is an unconstitutional violation of the separation of powers. Judicial review is an essential element of U.S. law, providing a critical and impartial check on government decisions that may negatively impact human health, the environment or livelihoods. Maintaining the clear-cut boundary of a Constitutionally-guaranteed separation of powers is essential to our government. This provision will blur that line.

·      Judicial review is a gateway, not a roadblock. Congress should be fully supportive of our nation’s independent judiciary. The ability of courts to review, evaluate and judge an issue that impacts public and environmental health is a strength, not a weakness, of our system. The loss of this fundamental safeguard could leave public health, the environment and livelihoods at risk.

·      It removes the “legal brakes” that prevent fraud and abuse. In recent years, federal courts have ruled that several USDA GE crop approvals violated the law and required further study of their health and environmental impact. These judgments indicated that continued planting would cause harm to the environment and/or farmers and ordered interim planting restrictions pending further USDA analysis and consideration. The Monsanto rider would prevent a federal court from putting in place court-ordered restrictions, even if the approval were fraudulent or involved bribery.

·      It’s unnecessary and duplicative. Every court dealing with these issues is supposed to carefully weigh the interests of all affected farmers and consumers, as is already required by law. No farmer has ever had his or her crops destroyed as a result. USDA already has working mechanisms in place to allow partial approvals, and the Department has used them, making this provision completely unnecessary.

·      It shuts out the USDA. The rider would not merely allow, it would compel the Secretary of Agriculture to immediately grant any requests for permits to allow continued planting and commercialization of an unlawfully approved GE crop. With this provision in place, USDA may not be able to prevent costly contamination episodes like Starlink or Liberty Link rice, which have already cost farmers hundreds of millions of dollars in losses. The rider would also make a mockery of USDA’s legally mandated review, transforming it into a ‘rubber stamp’ approval process.

·      It’s a back-door amendment of a statute. This rider, quietly tacked onto an appropriations bill, is in effect a substantial amendment to USDA’s governing statute for GE crops, the Plant Protection Act. If Congress feels the law needs to be changed, it should be done in a transparent manner by holding hearings, soliciting expert testimony and including full opportunity for public debate.

If we allow this “Monsanto Rider” to be slipped into the FY 2013 Agricultural Appropriations bill, consumers and farmers will lose what little control we have now over what we plant and what we eat.

If you would like to join the hundreds of thousands of concerned citizens who have already written to Congress in support of the DeFazio amendment, please sign our petition here.

Alexis Baden-Mayer is Political Director of the Organic Consumers Association.

Ronnie Cummins is founder and director of the Organic Consumers Association. Cummins is author of numerous articles and books, including "Genetically Engineered Food: A Self-Defense Guide for Consumers" (Second Revised Edition Marlowe & Company 2004).