Thursday, June 23, 2011
Renewed alfalfa attack cites ESA
By Mateusz Perkowski
June 23, 2011
Biotech opponents have revived their argument that USDA’s deregulation of genetically engineered Roundup Ready alfalfa unlawfully jeopardizes threatened and endangered species.
The Center for Food Safety, the lead plaintiff in a lawsuit against the agency, has asked a federal judge in San Francisco to overturn USDA’s decision to fully commercialize the crop, which can tolerate glyphosate herbicides.
Aside from effectively requesting a moratorium on further planting of transgenic alfalfa, the group also wants the judge to issue an injunction that may limit or prohibit farmers from spraying the crop with glyphosate.
Biotech opponents claim the USDA failed to consult with the U.S. Fish and Wildlife Service before fully deregulating the crop earlier this year.
“We think that’s ridiculous and we think the court will find the same thing,” said Paul Achitoff, an attorney for Earthjustice who represents the plaintiffs.
Planting of transgenic alfalfa will increase the use of glyphosate, an herbicide that may harm threatened and endangered species in violation of the Endangered Species Act, according to a motion filed in U.S. District Court by the plaintiffs on June 20.
Attorneys for the USDA and Monsanto, the biotech company that developed the crop, said they could not comment on pending litigation.
The current lawsuit over genetically engineered alfalfa is the second time biotech opponents have challenged the crop’s deregulation in court. Their previous attempt successfully ceased planting of the crop between 2007 and 2011.
During those years, USDA completed a comprehensive environmental review of the crop and once again decided to allow farmers to grow it without restrictions.
The federal court order that previously halted cultivation of transgenic alfalfa was based on the finding that USDA had violated the National Environmental Policy Act. The agency should have thoroughly studied the possibility of cross-pollination with conventional alfalfa, the court said.
Allegations pertaining to the Endangered Species Act were dismissed, but plaintiffs say that outcome hasn’t discouraged them from using a similar argument again.
“It’s apples and oranges,” said George Kimbrell, an attorney for the Center for Food Safety.
In the original lawsuit, the plaintiffs alleged that the U.S. Environmental Protection Agency was at fault for allowing glyphosate to be used on alfalfa in violation of the ESA.
The federal judge dismissed that claim because the plaintiffs didn’t follow the correct administrative process for challenging EPA’s pesticide regulations.
“We didn’t sue the EPA this time,” Kimbrell said.
Biotech opponents had also claimed that USDA violated the ESA in the previous lawsuit. That argument was also dismissed, albeit for a different reason — the judge ruled that USDA violated another environmental law and thus he didn’t have to reach a decision on the ESA issue.
Plaintiffs have decided to resurrect the ESA argument because it will allow them to try to overturn the deregulation decision before the USDA produces records used in its environmental study, the attorneys said.