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Monsanto Alfalfa Can’t Be Limited as Plant Pest: Court

Alfalfa genetically modified to withstand Monsanto Co. (MON)’s Roundup weed killer was correctly deemed by U.S. agriculture officials not to be a plant pest that needs to be regulated, a federal appeals court ruled.

The U.S. Court of Appeals in San Francisco today upheld a lower-court ruling that unconditionally deregulated the product and agreed the Agriculture Department’s Animal Plant and Health Inspection Service lacks jurisdiction to regulate the plant.

The suit was at least the second attempt by environmental groups to overturn the department’s decision to deregulate the genetically engineered alfalfa. The groups argued the alfalfa will cross-pollinate with and alter the genetic structure of conventional alfalfa, in a process called transgenic contamination, and compromise organic products.

The groups also argue the deregulation will lead to weeds resistant to the weed-killer, causing farmers to apply greater amounts and different mixtures of herbicides, harming plants and animals living near alfalfa fields where the weed killer is applied and genetically modified alfalfa is grown.

The law at issue, the Plant Protection Act, “does not regulate the types of harms that the plaintiffs complain of,” and the Agriculture Department correctly concluded that Roundup-Ready Alfalfa wasn’t a “plant pest,” the appeals court said in its written opinion. “Once the agency concluded that Roundup-Ready Alfalfa was not a plant pest, it no longer had jurisdiction to continue regulating the plant.”

Company Attorney

“The Court of Appeals ruling provides legal certainty for U.S. alfalfa growers,” Kyle McClain, Monsanto’s chief litigation counsel, said in an e-mailed statement. “The decision is an important reaffirmation of the federal government’s process for regulating biotechnology-improved crops.”

The Center for Food Safety, one of the groups that sued, is disappointed in the ruling and will pursue other legal options to “halt the sale and planting of this harmful crop,” the organization said in an e-mailed statement.

“This is an irresponsible decision,” Andrew Kimbrell, the group’s executive director, said in the statement. “The court acknowledged the many stark environmental and economic impacts of these crops, and yet bends over backwards in allowing USDA to avoid addressing those concerns in its regulatory process.”

He called the ruling “contrary to the Supreme Court’s decision on genetically engineered alfalfa and prior decisions by numerous other courts.”

Harm Foreseen

The decision acknowledged that the deregulation will lead to irreparable damages to rural economies from transgenic contamination, closing of major export markets, significant increase in the use of herbicides and the resulting spread of herbicide-resistant weeds, as well as harms to the environment and numerous endangered species, according to the statement.

The USDA last week delayed approval of new herbicide-tolerant crops developed by Monsanto and Dow Chemical Co. to give them additional scrutiny, citing the public’s concern about the environmental effects of increased use of 2,4-D and dicamba, weedkillers that have been widely used since the 1960s.

The Center for Food Safety asked the court last year to ban or at least encourage the government to limit the use of St. Louis-based Monsanto’s Roundup-Ready Alfalfa on grounds that unconditional deregulation violates federal laws protecting endangered species and guarding the environment against noxious weeds. Monsanto is the world’s largest seed company.

Government Arguments

Government attorneys argued that regulators rightly determined that Roundup-Ready Alfalfa is no different from other alfalfa and therefore doesn’t pose any danger to other plants. Increased use of weed killer and the effect herbicides have on endangered species is outside the agency’s purview, they said in court filings.

Sales of genetically modified alfalfa were first deregulated in 2005. A federal judge in San Francisco ruled two years later that more environmental review of the plant was needed.

The U.S. Supreme Court in 2010 overturned the planting ban while stopping short of explicitly allowing farmers to begin planting the seed. After new studies, the Agriculture Department deregulated the plants without restriction in 2011, prompting another lawsuit by environmental groups and organic farmers.

The case is Center for Food Safety v. Vilsack, 12-15052, U.S. Court of Appeals for the Ninth Circuit (San Francisco).

To contact the reporters on this story: Joel Rosenblatt in San Francisco at jrosenblatt@bloomberg.net; Karen Gullo in San Francisco at kgullo@bloomberg.net.

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net.

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