The Department of Agriculture's decision to fully deregulate biotech alfalfa will delay, but not forestall, a day of reckoning between the rising organic industry and the coalition of farmers, agribusinesses and biotech firms that support the widespread adoption of genetically engineered crops, opponents and observers of the department's conclusion said yesterday.
In December, USDA shocked the farming industry by announcing that it may impose geographic restrictions on the cultivation of biotech alfalfa, the controls meant to limit the crops' cross-pollination with conventional and organic varieties. The proposal, set aside by the department yesterday, marked a stark reversal from USDA's past, laissez-faire regulations, which focused largely on food safety, placing the burden for growing crops free of genetically modified seed on organic growers.
"Politics has won over science," said Phil Geertson, a farmer in Idaho at the center of the legal dispute over Roundup Ready alfalfa, which is bioengineered to resist the herbicide glyphosate. Geertson's case, which reached the Supreme Court last year, forced USDA to vacate its previous attempt to deregulate the crop several years ago, pending its just completed environmental review.
"In short, yes, we are going back to court," added George Kimbrell, one of Geertson's attorneys and a lawyer for the Center for Food Safety, the anti-biotech group that has won a series of legal victories over the past few years forcing prolonged review of biotech alfalfa and sugar beets.
Many farmers will welcome an ability to grow the herbicide-resistant alfalfa, seeking to copy the gains made by their peers cultivating bioengineered corn or soy, both of which also carry genes granting herbicide resistance. Alfalfa is one of the country's largest crops, with some 20 million acres planted, most of which is used as hay for cattle.
"The USDA has acknowledged that in these difficult economic times, America's farmers need every advantage to stay competitive and help provide a reliable, affordable food supply for the U.S. and people worldwide," said Mark McCaslin, president of Forage Genetics International, in a statement. A subsidiary of the Land O'Lakes Inc. farmers' cooperative, Forage developed Roundup Ready alfalafa in collaboration with the seed giant Monsanto Co.
Organic growers and the conventional alfalfa industry are not as far apart as some rhetoric may indicate, added Dave Miller, chairman of the National Alfalfa & Forage Alliance (NAFA) and director of research at Pioneer Hi-Bred International Inc., a biotech seed developer and subsidiary of DuPont. The agency's proposal has driven a discussion between the two sides, he said.
"I don't know if that was their objective," he said, "but it certainly was a conversation starter."
There is no question about the safety of Roundup Ready alfalfa, which uses well-established bioengineering techniques. Rather, organic farmers have long complained that biotech pollen could drift into their fields, causing them to lose exports to regions wary of genetic engineering, like Japan and Europe. Such cross-pollination does not cause organic crops to lose their certification in the United States, but increasingly, private labels like the Non-GMO Project are challenging the status quo, causing panic among organic growers about losing their wary, high-end consumers.
USDA's decision to fully deregulate the alfalfa should please Republican lawmakers, who broadly support the technology's application. However, its choice drew scorn from two past co-authors of the department's organic standards, Sen. Patrick Leahy (D-Vt.) and Rep. Peter DeFazio (D-Ore.). The agency had sought compromise, but wound up "surrendering" to the biotech industry, they wrote in a letter.
"USDA officials had an opportunity to address the concerns of all farmers, whether they choose to farm genetically altered crops, conventional crops or organic crops, and to find a way for them to coexist. Instead, what we now have is a setback for the nation's organic and conventional agriculture sectors," they wrote. "Instead of settling this issue, USDA's decision regrettably guarantees further rounds in the courts."
Since taking office, Agriculture Secretary Tom Vilsack has repeatedly expounded on the need for organic and biotech agriculture to coexist, remarking on occasion that, as secretary, he had "two sons" that he loved equally. This love was driven in large part by the rising clout of the organic industry -- the supermarket chain Whole Foods strongly opposed the alfalfa deregulation -- and a series of court decisions that left federal judges determining the fate of biotech crops.
Defending the agency's consideration of geographic restrictions at a workshop in late December, Vilsack argued that a failure to compromise between the industries will lead to a haphazard regulatory system.
"If you want lawyers and lawsuits and litigation to decide this, I guarantee you, you're not going to have a system that's got integrity," Vilsack said. "You're going to have a system that's just totally confusing, because there are going to be different decisions in different districts."
USDA faced stiff opposition against enforcing these policies from above, with agribusiness lobbyists and Republican lawmakers in the House questioning whether the agency even had the legal authority to approve a partial deregulation of a biotech crop. The industry feared that should alfalfa face restrictions, a precedent would be set, and similar limits would be placed on sugar beets and other future biotech crops.
Last week, Vilsack faced House lawmakers at a specially convened "forum" of the Agriculture Committee, where Republicans warned that the partial deregulation -- which would have limited biotech alfalfa from being grown in areas dedicated to seed production -- would violate the law and complicate the country's international relations, where it has been a vigorous proponent of the benefits of agricultural biotech.
Prior to the forum, Rep. Frank Lucas (R-Okla.), the committee's new chairman, sent a letter to Vilsack, warning that USDA was allowing politics to enter its regulatory process -- a complaint common on both sides of the conflict. The United States has never passed legislation focused on regulating biotech crops, and instead USDA regulates biotech crops under its rules governing "plant pests."
"It is unfortunate that those critical of the technology have decided to litigate and as you rightly point out that courts may unwisely interfere in normal commerce," he wrote. "However, the alternative you propose and include in the [environmental impact statement] is equally disturbing since it politicizes the regulatory process and goes beyond your statutory authority and indeed Congress' intent in the Plant Protection Act."
While announcing USDA's deregulation decision, Vilsack asserted that the agency did have authority to pursue partial deregulation. The agency's own press materials, however, carefully couch its decision within the language of plant pest risks. The alfalfa, it says, "did not exhibit a greater plant pest risk in the geographically restricted areas described in [the coexistence] alternative. ... Therefore it would not be consistent with APHIS' regulatory authorities."
Legal scholars largely believe USDA would survive a challenge to a partial deregulation decision in court, citing the Supreme Court's acceptance of such a possibility when it considered Geertson's alfalfa case last year. Both sides' arguments over the use of "sound science" in regulating the crops -- a term that frequently appears in the relevant law -- are a bit of canard, said Susan Schneider, an agricultural law professor at the University of Arkansas.
"All of this talk about science and science-based analysis on the part of proponents of GM crops is very misleading," Schneider said. "The science is that we cannot contain GM crops without significant restrictions. The policy issue -- the real issue here -- is whether we care."
The issue of cross-pollination between biotech and conventional alfalfa is largely an issue of seed production, which occurs on about 100,000 acres of land, largely in the country's West. Over the past decade, the alfalfa industry has been proactive in studying how it can limit such pollination, with national organizations like NAFA publishing guides on isolation distances, NAFA's Miller said.
"There are standards in place for trying to meet certain market needs in regards to gene flow," Miller said. These standards, however, may not guarantee the complete absence of Roundup Ready genes in organic alfalfa, which could complicate exports to regions of the world, like Europe, that have zero tolerance for the presence of genetically modified crops and have fine-grained tools to detect the genes.
Both the alfalfa industry and USDA will encourage growers to consult with their neighbors and develop what Miller called "opportunity zones" -- regions solely devoted to growing biotech, organic and conventional alfalfa seed. (Existing "stewardship contracts" for biotech alfalfa also guarantee some sensitivity to cross-pollination.) However, it remains to be seen whether the critical mass exists for organic growers to develop these regions, given that a single biotech farmer could halt the process.
USDA has also promised to take steps guaranteeing the survival of high-quality alfalfa seed free of any Roundup Ready genes. The agency will refine existing models of gene flow in alfalfa, and it will establish two committees to study whether organic farmers can receive insurance or indemnification if their biotech crops cross-breed with their fields, a long-sought desire.
Still, the agency's decision not to go down the path of coexistence will likely result in continued lawsuits and could lead to a decisive moment in the law, said Bryan Endres, an agricultural law professor at the University of Illinois.
"There's going to be more litigation, unless you can come up with some sort of peaceful coexistence," Endres said. "It's in essence reached a crisis point."