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Tuesday, April 19, 2011

Deregulating Genetically Engineered Alfalfa and Sugar Beets: Legal and Administrative Responses

Tadlock Cowan
Analyst in Natural Resources and Rural Development

Kristina Alexander
Legislative Attorney

Monsanto Corporation, the developer of herbicide-tolerant varieties of genetically engineered (GE) alfalfa and sugar beet (called Roundup Ready alfalfa and Roundup Ready sugar beet), petitioned USDA’s Animal and Plant Health Inspection Service (APHIS) for deregulation of the items. Deregulation of GE plants is the final step in the commercialization process. Monsanto filed a petition for deregulation of its GE alfalfa in 2004, and for GE sugar beets in 2005.

As part of the deregulation process, APHIS conducts an environmental review under the National Environmental Policy Act (NEPA) to determine whether any significant environmental impacts will result from deregulation. APHIS conducted a limited review, known as an environmental assessment (EA), of the GE plants to assess the impacts of growing them on a commercial scale. APHIS issued a “finding of no significant impact” (FONSI) for GE alfalfa and for GE sugar beet.

Lawsuits subsequently challenged the adequacy of the EAs in separate actions. Both courts held that APHIS should have prepared a more analytically thorough environmental impact statement (EIS) for the deregulation decisions. Separately, the courts directed APHIS to complete an EIS on the effects of deregulating GE alfalfa and GE sugar beet.

The court in the GE alfalfa case halted planting of the genetically modified seed, and nullified the deregulation. The injunction was appealed to the U.S. Supreme Court, which held that the injunction was too broad and that the court should have considered partial deregulation. The Supreme Court did not discuss the appropriateness of the environmental review. In the meantime, APHIS completed the environmental review directed by the lower court, releasing a final EIS for GE alfalfa on December 16, 2010. On January 27, 2011, Secretary Vilsack announced that APHIS was granting GE alfalfa full deregulation. Suit was filed claiming the deregulation violated NEPA and the Plant Protection Act.

The court in the GE sugar beet case did not formally prohibit planting sugar beet, but it voided APHIS’s deregulation decision in August 2010, undoing the five-year-old approval of GE sugar beet, from which nearly half of U.S. sugar is derived. APHIS issued four permits authorizing seedling production that would not allow flowering or transplanting without additional authorization. In November 2010, a judge ordered those seedlings pulled from the ground, holding that APHIS had violated NEPA in issuing the permits. The Ninth Circuit temporarily halted that decision in December 2010, ultimately holding in February 2011 that the seedlings did not have to be removed.

APHIS anticipates that an EIS for GE sugar beet will be completed in May 2012. In the interim, APHIS announced on February 4, 2011, that the agency would partially deregulate GE sugar beet root crop production, but continue full regulation for sugar beet seed crop production. That regulatory status will remain effective through December 31, 2012. An EA-FONSI was issued. Suits have been filed either challenging the EA or seeking to establish its legality.

The cases of GE alfalfa and sugar beet highlight continuing policy questions about the adequacy of APHIS’s deregulation protocol, particularly regarding the environmental review process. In their suits against APHIS, plaintiffs cited the EAs’ failure to assess the impact on non-GE alfalfa growers (particularly those who export to Japan, Korea, and Taiwan) and on producers of commercial table beet and chard seeds (species that can cross-pollinate with GE sugar beet).

Date of Report: April 4, 2011
Number of Pages: 18
Order Number: R41395
Price: $29.95

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