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Monday, February 7, 2011

Deregulating Genetically Engineered Alfalfa and Sugar Beets: Legal and Administrative Responses

Tadlock Cowan
Analyst in Natural Resources and Rural Development

Kristina Alexander
Legislative Attorney

Monsanto Corporation, the developer of herbicide-tolerant varieties of genetically engineered (GE) alfalfa and sugar beet (marketed under the name of Roundup Ready alfalfa and Roundup Ready sugar beet), petitioned USDA’s Animal and Plant Health Inspection Service (APHIS) for deregulation of the items. Deregulation of GE plants is the final step in the commercialization process. Monsanto filed a petition for deregulation of its GE alfalfa in 2004, and for sugar beets in 2005.

As part of the deregulation process, APHIS conducts an environmental review under the National Environmental Policy Act (NEPA) to determine whether any significant environmental impacts will result from deregulating the item. APHIS conducted a limited review, known as an environmental assessment (EA), of the GE plants to assess the impacts of growing them on a commercial scale. For both GE alfalfa and sugar beets, APHIS issued a “finding of no significant impacts” (FONSI), in June 2005 and March 2005, respectively.

Lawsuits subsequently challenged the adequacy of the EAs as the basis of the FONSI. The courts agreed that APHIS should have prepared an environmental impact statement (EIS) for both deregulation decisions. APHIS was directed by the court to complete an EIS on the effects of deregulating both of the GE varieties.

The court in the GE alfalfa case halted planting of the genetically modified seed after May 3, 2007, and nullified the deregulation. The injunction was appealed to the U.S. Supreme Court, which held that the injunction was too broad and that the court should have considered partial deregulation. The Supreme Court did not discuss the appropriateness of the environmental review.

The court in the GE sugar beet case did not formally prohibit planting sugar beet, but it voided APHIS’s deregulation decision in August 2010. This decision undoes the five-year-old approval of GE sugar beet, from which nearly half of U.S. sugar is derived. APHIS announced on September 1, 2010, that the agency is evaluating a request to partially deregulate GE sugar beets, which would permit planting and harvesting sugar beets under certain restrictions. APHIS issued four permits authorizing seedling production that would not allow flowering or transplanting without additional authorization. In December, a judge ordered those seedlings pulled from the ground, holding that APHIS had violated NEPA in issuing the permits. This ruling was put on hold by the Ninth Circuit.

APHIS anticipates that the draft EIS for sugar beet will be publicly available May 2011, and the final EIS in May 2012. A draft EIS for alfalfa was released to the public on December 14, 2009. The final EIS was released on December 16, 2010. APHIS announced no final decision on approval of the GE alfalfa, although the agency stated that it supports either a complete deregulation or a partial/conditional deregulation that would permit the crop to be grown under geographic restrictions and isolation distances.

The cases of GE alfalfa and sugar beet highlight continuing policy questions about the adequacy of APHIS’s deregulation protocol, particularly regarding the environmental review process. In their suits against APHIS, plaintiff lawyers cited the EAs’ failure to assess the impact on non-GE alfalfa growers (particularly those who export to Japan, Korea, and Taiwan) and on producers of commercial table beet and chard seeds (species that can cross-pollinate with GE sugar beet).

Date of Report: January 18, 2011
Number of Pages: 17
Order Number: R41395
Price: $29.95

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