Alfalfa genetically modified to withstand Monsanto Co.’s herbicide should be taken off the market because regulators didn’t properly consider how it affects endangered plants and animals, environmental groups told a federal appeals court.
Advocacy groups are seeking for the second time in six years to overturn the U.S. Department of Agriculture’s decision to deregulate alfalfa engineered to be resistant to Monsanto’s Roundup-Ready weed killer.
Use of the plant encourages farmers to douse fields with Roundup, which increases the likelihood of contamination of other plants and animals within habitat near fields of alfalfa, the fourth-most-planted U.S. crop behind corn, soybeans and wheat, according to lawyers for the Washington-based group Center for Food Safety.
The use of Roundup-ready alfalfa “will result in substantial harm,” George Kimbrell, an attorney for the Center for Food Safety, told a three-judge panel today at a U.S. Court of Appeals hearing in San Francisco. “It will cause the loss of millions of dollars in export fees.”
Kimbrell’s client is asking the court to ban or at least encourage the government to limit the use of Roundup-Ready alfalfa on grounds that unconditional deregulation violates federal laws protecting endangered species and guarding the environment against noxious weeds.
The lawyer said the USDA’s action rendered environmental protection law “a nullity” and would make Roundup-Ready alfalfa unregulated.
Government attorneys claim that that the USDA 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.
“The plaintiffs are confusing plant pests with things that are not pests,” said Dana Kaersvang, a Justice Department attorney.
Richard Bress, a Latham & Watkins LLP attorney representing Monsanto, echoed that argument.
“Under the Plant Protection Act, Roundup-Ready alfalfa is not a pest,” he said. “It isn’t even close.”
Two of the judges on the panel, Mary Schroeder and N. Randy Smith, questioned the lawyers on how much discretion the USDA has to regulate Roundup-Ready.
The third panelist, U.S. Circuit Judge Sidney Thomas, asked Kimbrell: “If it is not a plant pest then the whole case stops here?”
Sales of genetically modified alfalfa were first deregulated in 2005. A federal judge in San Francisco ruled in the case 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 USDA deregulated the plants without restriction in 2011, drawing another lawsuit from environmental groups and organic farmers.
Alfalfa is worth $9 billion a year, with annual seed sales valued at $63 million, according to the USDA. Dairy cows are the primary consumers of alfalfa hay. Monsanto, based in St. Louis, is the world’s largest seed company.
The case is Center for Food Safety v. Vilsack, 12-15052, U.S. Court of Appeals for the Ninth Circuit (San Francisco).