In a decision set to upturn the biotech industry and outrage its opponents, the Agriculture Department announced late last week that it does not consider a lawn grass genetically engineered to resist a weedkiller within its regulatory domain, ratifying a pathway for certain classes of bioengineered plants to bypass federal regulation.
The USDA's authority over biotech plants largely stems from its oversight of plant pests such as bacteria, fungi and insects. Since companies have created most genetically modified crops, like herbicide-resistant corn and soybean, using either genes or tools derived from microbes, USDA has long extended its powers to nearly every biotech plant developed in the country.
Unlike these predecessors, the herbicide-tolerant Kentucky bluegrass, developed by Scotts Miracle-Gro Co., contains no microbial material. The grass's tolerance to glyphosate, a common weedkiller, stems from the genetic material of corn, rice and Arabidopsis plants, and Scotts spliced the bluegrass's DNA with a gene gun, a common lab technique that shuttles DNA on high-velocity heavy metals.
Given these specifics, and its determination that modified bluegrass should not be controlled as a weed at the federal level, USDA's Animal and Plant Health Inspection Service (APHIS) will allow Scotts to proceed with commercializing its bluegrass product, the agency said in a statement, released on the Friday before the Fourth of July weekend.
"Because no plant pests, unclassified organisms or organisms whose classification is unknown were used to genetically engineer Scotts' [genetically engineered] Kentucky bluegrass," the agency said, "APHIS has no reason to believe it is a plant pest and therefore does not consider the Kentucky bluegrass described in the Scotts letter to be regulated."
The agency's decision, prompted by a query from Scotts last year, could clear the way for biotech crops incorporating the genes from unrelated plant species to avoid the long review required by APHIS for modified crops. APHIS will examine such situations on a case-by-case basis, according to a list of questions and answers released by the agency.
"If a [genetically engineered] organism is not a plant pest, is not made using plant pests, and APHIS has no reason to believe that it is a plant pest, then the [genetically engineered] organism would not fall under APHIS' regulatory authority," it said.
This is not the first time APHIS has decided a modified plant was beyond its regulatory authority. The agency recently concluded that bioengineered petunias did not fall under its jurisdiction, a precedent cited by Scotts, and more than a decade ago a modified geranium was also cleared. Neither of these plants has the potential broad appeal of Scotts' turf, however.
Kentucky bluegrass is widely grown across the United States, providing dense green sod often popular in parks and home lawns. The grass is also grown in pastures and prairies, and can migrate into lightly populated forests. It is also known to appear among row crops, though it is not considered a troublesome weed, USDA said. Given its broad spread, Scotts turf could potentially be grown more broadly than any previous biotech plant.
Anticipating the anger that could accompany its decision from the organic community and longtime opponents of biotech plants, Agriculture Secretary Tom Vilsack urged Scotts in a letter to engage with growers of bluegrass seed, among others, who will be concerned that the plant could threaten their exports to regions sensitive to modified crops.
"USDA therefore strongly encourages Scotts to discuss these concerns with various stakeholders during these early stages of research and development of this GE Kentucky bluegrass variety and thereby develop appropriate and effective stewardship measures to minimize commingling and gene flow between GE and non-GE Kentucky bluegrass," Vilsack wrote.
Is it a weed?
Kentucky bluegrass's weed status is bound to be a future point of contention. In 2002, the Center for Food Safety, one of the most vocal and litigious opponents of bioengineered plants, petitioned USDA to regulated modified bluegrass as a "noxious weed," claiming its resistance to glyphosate, commonly sold under the brand name Roundup, could turn the common grass into a persistent threat.
In a parallel decision last week, USDA said that while the modified bluegrass did in fact meet the definition of a noxious weed, it would not "cause impacts significant enough to warrant regulation at the federal level." Kentucky bluegrass has a low-to-moderate rating for management difficulty, the agency said, adding that USDA "[does] not think tolerance to one herbicide would justify increasing that ... rating to high."
Even if the agency wanted to regulate the grass as a weed, it couldn't, USDA noted.
"Funding for federal regulatory response for Kentucky bluegrass is unlikely to be available at a time when our noxious weed program is facing funding limitations," it said, "and the required response would be beyond the combined federal and state regulatory capacity."
Given the large volume of corn and soybean crops already engineered to resist glyphosate, there will likely be concerns that resistant bluegrass, widely deployed in parks and homes, could further exacerbate the number of glyphosate-resistant weeds that have appeared in recent years. APHIS has "little authority" to regulate modified plants solely under that concern, though, it said.
"To date APHIS has never regulated a weed as 'noxious' due to its resistance to an herbicide alone, nor has it ever taken action to prevent the evolution of noxious weeds," it said. "Herbicide resistant weeds are not an issue exclusively associated with the use of herbicides on genetically engineered ... crops."
Scotts plans to conduct field trials of the modified bluegrass in the near future, the company says.
Click here to see USDA's bluegrass announcement and supporting documents.
Want to read more stories like this?
E&E is the leading source for comprehensive, daily coverage of environmental and energy politics and policy.
Click here to start a free trial to E&E -- the best way to track policy and markets.