08
Jan
Federal Court Reverses Genetically Engineered Crop Deregulation, adopted by First Trump Administration
(Beyond Pesticides, January 8, 2024) On the brink of the second Trump administration, a legal victory just last month overturned a rule issued under the first Trump administration to “practically eliminate oversight of novel GE technology and instead let industry self-regulate,†as characterized by the Center for Food Safety (CFS). CFS served as counsel in the case for the plaintiffs, led by the National Family Farm Coalition. The U.S. District Court for the Northern District of California decision, responding to the lawsuit filed in 2021 on behalf of farm and environmental groups, remanded the case back to the U.S. Department of Agriculture (USDA) with instructions to follow. “This is a critical victory on behalf of farmers, the planet, and scientific integrity,” says George Kimbrell, legal director at the Center for Food Safety, also a plaintiff in the case. Mr. Kimbrell continued, “USDA tried to hand over its job to Monsanto and the pesticide industry and the Court held that capitulation contrary to both law and science.” It remains to be seen whether the incoming Trump administration will appeal this court decision.
Unpacking The Center for Food Safety Litigation
This legal battle began in 2004 with the Animal and Plant Health Inspection Service (APHIS) announcing that it would revisit rulemaking on the governance of genetically engineered organisms. In 2008, APHIS published a notice of this proposed rulemaking that resulted in the final rule in 2020. Center for Food Safety filed the lawsuit in 2021.
The court agreed with litigants that USDA violated various keystone environmental statutes, including the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), and the Plant Protection Act (PPA). [Passed by Congress in 2000, PPA consolidated the regulatory system for genetic engineering into one unitary framework combining various other previous laws.] Ultimately, the court determined that APHIS—the leading USDA agency assessing potential harms of GE crops—made “significant†errors regarding PPA and the Administrative Procedure Act (APA). “Summary judgment is granted to plaintiffs on the PPA-based APA claim that it was arbitrary and capricious for APHIS to not incorporate its noxious-weed authority in the final rule and to implement the conventional-breeding exemptions,†reads the summary judgment, written by U.S. District Judge Hon. James Donato.
Unpacking this ruling, the court finds that APHIS acted “arbitrarily and capriciously†in regard to PPA’s statutory mandate on noxious-weed authority (a.k.a. management of invasive plants and weeds) as well as attempting “to implement the conventional-breeding exemptions.â€
Relating to noxious weed authority, the court finds that “ignoring concerns the agency [APHIS] had previously recognized is not reasoned decision-making’†in highlighting “APHIS’s failure to address the limitations in the part 360 regulations with respect to GE plants that its prior assessments identified as justifying adding noxious weeds as a trigger to part 340 regulations was arbitrary and capricious.â€
Relating to breeding exemptions, “Nowhere in the final rule does APHIS acknowledge the conflicting scientific evidence concerning the basis on which the exemption is premised,†says Judge Donato. This, he refers to as “arbitrary and capricious.â€
A Game of Hot Potato: History of GE Litigation and Rulemaking
In 2019, USDA under the first Trump Administration proposed new rulemaking that would exempt almost all GE crops from regulation and allow the company that makes them to decide whether they are safe. In a petition submitted to the Federal Register that year, USDA Must Offer Basic Protection from Genetically Engineered Organisms, over six thousand comments were submitted by members of the public on varying sides of these issues. Environmental, public health, and consumer safety organizations, including Beyond Pesticides, urged that APHIS regulations should:
- Base the regulation of GE organisms on the unique hazards they present;
- Include “synthetic biology†in the definition of regulated genetic engineering;
- Prohibit developers from exempting themselves from regulation;
- Regulate plant-made pharmaceutical and industrial chemicals (PMPIs);
- Ensure that plant incorporated protectants (PIPs) are regulated at all scales;
- Address hazards other than “plant pest†risks, including: The unwelcome presence of GE genes in neighboring fields of organic or identity-preserved crops, the creation of new compounds in a plant formed in the plant’s detoxification of herbicides, the movement of genes for manufacture of industrial or pharmaceutical chemicals into crop plants, the creation of “superweeds†(plant pests) through selection for resistance to herbicides continually used on GE crops, the overuse of herbicides in cropping systems dependent on the use of herbicides sprayed over herbicide-tolerant crops, destruction of habitat adjacent to farm fields by overuse of nonselective herbicides sprayed over herbicide-tolerant crops, selection for resistance in insects targeted by PIPs, reduction in populations of insects due to effects of PIPs and destruction of habitat adjacent to fields sprayed by nonselective herbicides over herbicide-tolerant crops, and health effects suffered by those exposed to excessive use of herbicides.
The labeling requirement, in conjunction with the first Trump Administration’s National Bioengineered Food Disclosure Law (See Daily News review here and here), mandated that genetically engineered foods bear labels that indicate that they have been “bioengineered,†provide a text-message phone number or display a QR code to access further information. (“Additional options such as a phone number or web address were available to small food manufacturers or for small and very small packages.â€) According to an agency spokesperson, the rule is designed to “balance the need to provide information to consumers with the interest in minimizing costs to companies.†Advocates and communities arrived at different conclusions. (See here for previous Daily News.)
Associated Threats Relating to GE Products
Organic advocates and farmers view federal decision-making, regardless of Republican or Democrat-run administrations, as inadequate to protect against GE contamination and subsequent health risks. Look no further than the Biden Administration-published report that promotes genetic engineering, “The Coordinated Framework for the Regulation of Biotechnology – Plan for Regulatory Reform under the Coordinated Framework for the Regulation of Biotechnology.†(See Daily News here.)
Going further, the U.S. Environmental Protection Agency (EPA)-approved the introduction of millions of GE mosquitoes in California and Florida (See Daily News here) alongside the continuous use of prophylactic synthetic insecticide spraying (including sumithirin and bifenthrin) amid outbreaks of deadly arborviruses such as West Nile and Eastern Equine Encephalitis (see Beyond Pesticides press release here and associated Action of the Week here) exacerbates insect and weed resistance to toxic chemicals and pesticides. Public health professionals and wildlife and ecosystem stewards alike, not to mention local communities across the country, continue to hold concerns that industry is creating the same problems they wish to solve for the sake of profit and at the expense of public well-being.
For more coverage of regulatory decision-making and litigation, see Daily News sections on litigation, genetic engineering, and USDA. Are you continuing to feel frustrated about the direction of food safety and health of your communities going into 2025? Consider subscribing to Action of the Week to voice your concerns directly to decision-makers. You can start with the following action telling USDA, FDA, and EPA to replace agricultural provisions in the Framework with policies that discourage GE crops and promote organic agriculture.
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
Source: Center for Food Safety
