BIOTECH:

Judge orders destruction of genetically modified beets

A federal judge ordered the destruction last night of a batch of genetically modified sugar beets that he said had been planted illegally with the approval of the Agriculture Department.

Pending a stay by an appeals court, the beets developed by Monsanto Co. will be ripped from the ground next week.

Late this summer, USDA authorized nursery plantings of the beet seedlings, called stecklings, that would provide seed for hypothetical future crops, pending their approved use. The planting came soon after a federal court ordered that the widely grown Roundup Ready beets, approved for broad commercial use by USDA for several years, must return to controlled status pending further environmental review of the impact their growth has on organic seed growers and the environment.

U.S. District Judge Jeffrey White found USDA's authorization of the young beets without even a partial deregulation was highly suspect. "The legality of [the] defendants' conduct does not even appear to be a close question," he wrote. Therefore, he added, the seedlings "shall be removed from the ground."

The order is the most recent turn in a series of suits over the beets, engineered to resist the common herbicide glyphosate. Last year, White ruled that USDA had violated environmental laws by not conducting a full review before approving the crop in 2005 (Greenwire, Oct. 8, 2009). White allowed cultivation of the crops to continue temporarily, but he warned that future beet harvests would likely need to rely on conventional seed, a warning he backed up with a ruling this August returning the beets to regulated status.

White, who serves on the U.S. District Court for the Northern District of California, expressed particular irritation that USDA, Monsanto and its beet partners had not better prepared for the beets' return to regulated status. They waited almost a year after his first ruling before seeking to enact interim measures, a delay that exacerbated the harm that could result from the beets' destruction.

USDA and the beet industry "created this problem," White wrote. "They delayed in seeking or implementing interim relief despite knowing in September of 2009 that the court found [USDA] unlawfully deregulated sugar beets and thus, at a minimum, a vacature of the decision was highly likely."

Farmers quickly adopted Roundup Ready sugar beets after USDA's first deregulation, and the beets have come to dominate the United States' billion-dollar beet market, which supplies about half of the country's sugar.

White's decision, the beet industry warned, could harm future availability of the modified beets. Such fears, however, are "greatly exaggerated," White noted, given that stecklings planted prior to Aug. 13 would not be destroyed.

White's ruling is a victory for Earthjustice and the Center for Food Safety, which have long opposed the beets and successfully sued to force USDA to conduct an environmental impact statement (EIS) on their use. USDA estimates the EIS will be completed by May 2012.

The organizations were joined in their case by several organic seed producers from Oregon's Willamette Valley who feared the modified beets could crossbreed with closely related Swiss chard, complicating exports to markets wary of modified crops.

"USDA thumbed its nose at the judicial system and the public by allowing this crop to be grown without any environmental review," Earthjustice's lead attorney, Paul Achitoff, said in a statement. The department, he added, "has shown no regard for the environmental laws, and we're pleased that Judge White ordered the appropriate response."

Possibility of partial deregulation

The victory may be short-lived, however. White wrote that until USDA "alters the status quo by fully or partially deregulating genetically engineered sugar beets, and does so in a manner that comports with the requisite environmental statutes and regulations, [beet farmers] are legally precluded from growing and processing genetically engineered sugar beets."

This summer, the Supreme Court indicated in a related case involving Roundup Ready alfalfa that a partial deregulation of the crop, pending a completed EIS, could be a legal possibility (Greenwire, June 21).

Following this guidance, USDA issued a draft decision last month that seeks to allow cultivation of Roundup Ready beets under "strict permitting conditions" (E&ENews PM, Nov. 2).

The public comment period on the agency's proposed rule will end in the next few days. While Monsanto and the seed producer KWS SAAT AG had sought a partial deregulation of the beets under their supervision, USDA expressed a preference to leave the beets regulated under its exclusive control.

However USDA moves forward on the beets -- the department and Monsanto declined to comment by press time -- any move to allow cultivation of the beets prior to a completed environmental impact statement will likely draw additional suits from Earthjustice and scrutiny from the district court.

Click here to read White's decision.

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