Joseph Kiefer, Turning Over a New Sprout: Promoting Agricultural Health by Fostering the Coexistence of Organic and Genetically Modified Crops in the Wake of Monsanto Co. v. Geertson Seed Farms and the Deregulation of Modified Alfalfa

• Jurisdiction: United States,Federal
• Publication year: 2012
• Citation: Vol. 61 No. 5

TURNING OVER A NEW SPROUT: PROMOTING AGRICULTURAL HEALTH BY FOSTERING THE COEXISTENCE OF ORGANIC AND GENETICALLY MODIFIED CROPS IN THE WAKE OF MONSANTO CO. V. GEERTSON SEED FARMS AND THE DEREGULATION OF MODIFIED ALFALFA

ABSTRACT

According to the United States Department of Agriculture (USDA), the agricultural health of the United States requires the concurrent feasibility, or coexistence, of organic crops and genetically modified crops. Both types of crops offer separate environmental, economic, and health benefits. Modified crops, or crops infused with beneficial genes to increase yield or decrease the need for chemical applications, are ubiquitous in U.S. farming. Similarly, organic crops, or crops grown without modified genes, are gaining popularity. Unfortunately, the coexistence of organic and modified crops is threatened by the phenomenon of gene flow. Damaging gene flow occurs when modified crops spread their genes and contaminate the genes of nonmodified crops. This contamination threatens the organic status and marketability of organic crops and can thus cause economic damage to organic programs. The current legal and regulatory system is unable to control contamination and thus cannot ensure the vitality of organic-farming operations. To fulfill coexistence goals for the agricultural health of the nation, domestic farm programs must ensure the continued viability of organic farming.

The current regulatory system is unable to protect organic farms from the risks of contamination, and its inability deters and undermines organic farming. Recent deregulation decisions confirm this inability. Similarly, recent cases demonstrate that the technical litigation stemming from contamination confuses general courts and leads to inadequate remedies. This Comment argues that the regulatory and adjudicatory systems must protect organic farms from contamination to ensure their economic viability. When organic programs are economically viable, organic farms can beneficially coexist with modified-crop farms.

This Comment offers two possible solutions to the current regimes’ inability to foster coexistence. The Comment contends that changes in agency

policy could better encompass the economic interests of organic programs and therefore encourage coexistence. However, limits on an agency’s ability to change policy hinder the efficacy of this solution. This Comment argues that a revised statutory framework is required to protect organic crops from the damaging genetic drift associated with widespread genetically modified crops. The revised framework requires the USDA to consider the economic impacts of contamination when deregulating modified crops. The revision also mandates agency adjudication for contamination disputes to prevent general courts from handing down inadequate remedies. The revisions will ensure the continued viability of organic farms, foster coexistence, and secure the agricultural health of the nation.

INTRODUCTION 1244

1. GENETICALLY MODIFIED CROPS AND ORGANIC CROPS 1248

   1. Genetically-Modified-Crop Farming in U.S. Agriculture 1248

   2. Organic-Crop Farming in U.S. Agriculture 1250

   3. The Beneficial Coexistence of Modified and Organic Crops ... 1251

   4. Contamination and Its Frustration of Coexistence 1252

2. THE CURRENT FRAMEWORK AND ITS FAILURES 1253

   1. Patent Protection for Genetically Modified Crops 1253

   2. State and Local Efforts to Promote Coexistence 1255

      1. Trespass 1256

      2. Nuisance 1256

      3. Negligence 1257

      4. State and Local Efforts at Fostering Coexistence 1258

   3. The Existing Regulatory Framework 1258

      1. The Food and Drug Administration 1259

      2. The Environmental Protection Agency 1260

      3. The United States Department of Agriculture and the Animal and Plant Health Inspection Service 1261

      4. The National Environmental Policy Act 1262

      5. Failures in the Current Regulatory System 1264

3. MONSANTO CO. V. GEERTSON SEED FARMS AND CENTER FOR FOOD SAFETY V. VILSACK 1268

   1. Monsanto Co. v. Geertson Seed Farms 1269

   2. Center for Food Safety v. Vilsack 1271

4. POSSIBLE SOLUTIONS 1272

   1. New Course from Within APHIS, the FDA, and the EPA 1273

      1. EPA and FDA: Interpretive Changes of FIFRA and the FDCA 1274

      2. APHIS Interpretive Changes of the Plant Protection Act .. 1274

      3. Policy Changes Within APHIS and the USDA 1275

   2. Statutory Reform 1277

      1. Revising the Plant Protection Act to Account for Economic Impacts 1277

      2. Revising the Plant Protection Act to Require Continuing Oversight After Deregulation 1278

      3. Creating an Adjudicative Arm Within APHIS 1279

      4. Genetically Modified Alfalfa Under a Revised Regime 1281

      5. The Feasibility and Costs of Statutory Reform 1283

CONCLUSION 1284

INTRODUCTION

The United States enjoys a rich tradition of agricultural prosperity. The country led the world in the development of genetically modified (GM) crops and continues to be a world leader in GM-food production.1 The domestic planting of GM crops grew at an unprecedented rate from 1996 through 2005.2 Today, over 80% of the country’s corn, cotton, and soybeans contain genetically engineered genes.3 Modified crops offer benefits, such as increased yields, decreased labor costs, and decreased chemical applications.4 The United States Department of Agriculture (USDA) advocates GM-crop research because the crops may help solve potential “issues related to global food security, energy security, and climate change.”5

Like GM-crop farming, organic farming is a growing industry.6 Organic crops are crops grown without the aid of genetic alterations, pesticides, or herbicides.7 Organic crops tout benefits, such as the absence of food additives, the absence of pesticides and herbicides, and increased sustainability.8 Organic crops can also offer an absence of genetically altered elements and resistance to harm stemming from monocropping, or the widespread use of a single

1. See Linda Beebe, In re StarLink Corn: The Link Between Genetically Damaged Crops and an Inadequate Regulatory Framework for Biotechnology, 28 WM. & MARY ENVTL. L. & POL’Y REV. 511, 535 (2004) (citing George E.C. York, Note, Global Foods, Local Tastes and Biotechnology: The New Legal Architecture of International Agriculture Trade, 7 COLUM. J. EUR. L. 423, 426–27 (2001)); Karinne Ludlow & Stuart J. Smyth, The Quandary of Agricultural Biotechnology, Pure Economic Loss, and Non-Adopters: Comparing Australia, Canada, and the United States, 52 JURIMETRICS J. 7, 35 (2011).

2. CLIVE JAMES, INT’L SERV. FOR THE ACQUISITION OF AGRI-BIOTECH APPLICATIONS, BRIEF 35: GLOBAL

   STATUS OF COMMERCIALIZED BIOTECH/GM CROPS: 2006, at 1 (2006), available at http://www.isaaa.org/ resources/publications/briefs/35/download/isaaa-brief-35-2006.pdf.

3. See NAT’L RESEARCH COUNCIL OF THE NAT’L ACADS., THE IMPACT OF GENETICALLY ENGINEERED

CROPS ON FARM SUSTAINABILITY IN THE UNITED STATES 1 (2010).

4 Id. at 3–14.

1. U.S. DEP’T OF AGRIC., STRATEGIC PLAN FY 2010–2015, at 23 (2010), available at http://www.ocfo. usda.gov/usdasp/sp2010/sp2010.pdf.

2. Jason J. Czarnezki, The Future of Food Eco-Labeling: Organic, Carbon Footprint, and Environmental

   Life-Cycle Analysis, 30 STAN. ENVTL. L.J. 3, 14–15 (2011); Organic Agriculture, U.S. DEP’T AGRIC. ECON. RESEARCH SERV., http://www.ers.usda.gov/Briefing/Organic/ (last updated Nov. 30, 2009).

3. See Margaret Rosso Grossman, The Coexistence of GM and Other Crops in the European Union, 16

   KAN. J.L. & PUB. POL’Y 324, 324 (2007); Sara N. Pasquinelli, One False Move: The History of Organic Agriculture and Consequences of Non-Compliance with the Governing Laws and Regulations, 3 GOLDEN GATE U. ENVTL. L.J. 365, 368 (2010) (discussing the historic definition of organic).

4. See Grossman, supra note 7, at 360–61 (citing Minou Yussefi, Organic Farming Worldwide 2006:

   Overview and Main Statistics, in THE WORLD OF ORGANIC AGRICULTURE: STATISTICS & EMERGING TRENDS 2006, at 23, 23 (Helga Willer & Minou Yussefi eds., 2006)).

   
   

   variety.9 The USDA suggests that farmers are changing to organic-crop production at an increasing rate to “lower input costs, conserve nonrenewable resources, capture high-value markets, and boost farm income.”10

   
   

   Because of possible risks associated with GM crops, the interest of organic- farming operations in maintaining the organic status of their crops, and the desire to protect the overall stability of the agricultural sector, Congress has indicated its continued support for organic farming and the USDA has specifically announced its intention to foster coexistence between GM and

   organic crops.11 The USDA’s strategic plan and recent legislation emphasize

   the federal government’s desire to support organic programs. The USDA’s 2010–2015 strategic plan notes that maintaining access to organic markets is a component of ensuring the financial stability of American farms.12 Indeed, the strategic plan seeks to increase the number of organic-farming operations by approximately 25% by the end of 2015.13 Similarly, the Organic Foods Production Act’s stated purpose is “to facilitate interstate commerce in . . . food that is organically produced.”14 The Food, Conservation, and Energy Act of 2008 (2008 Farm Bill) provides specific and ongoing incentives for farmers to engage in organic-crop production.15 These legislative statements and initiatives indicate a congressional desire to foster organic-crop programs alongside GM-crop programs.

   
   

5. See Keith Aoki, Seeds of Dispute: Intellectual-Property Rights and Agricultural Biodiversity, 3 GOLDEN GATE U. ENVTL. L.J. 79, 124 (2009) (citing CARY FOWLER & PAT MOONEY, SHATTERING: FOOD, POLITICS, AND THE LOSS OF GENETIC DIVERSITY 47 (1990)).

6. Organic Production: Documentation, U.S. DEP’T AGRIC. ECON. RESEARCH SERVICE, http://www.ers.

   usda.gov/data-products/organic-production/documentation.aspx (last updated July 5, 2012).

7. See Letter from Thomas Vilsack, Sec’y of Agric., U.S. Dep’t of Agric., to Stakeholders (Dec. 2010),

   available at http://www.usda.gov/documents/GE_Alfalfa-to_stakeholders-2010Dec.pdf (“[W]e at the USDA are striving to lead an effort to forge a new paradigm based on coexistence and cooperation. If successful, this effort can ensure that all forms of agriculture thrive so that food...