Competitive Enterprise Institute | 1899 L ST NW Floor 12, Washington, DC 20036 | Phone: 202-331-1010 | Fax: 202-331-0640
Action needs to be taken to prevent anti-biotech activists from co-opting environmental law to derail the planting of transgenic crops that have already received regulatory approval.
The latest weapon used in the misinformation war against recombinant DNA technology and its agricultural applications is an obscure environmental law from the seventies. Green activists and organic farmers are exploiting the National Environmental Policy Act of 1970 (NEPA) to convince courts that inconsequential paperwork oversights by regulators at the US Department of Agriculture warrant the revocation of two final approvals for recombinant DNA–modified crop varieties and of the issuance of permits to test several others. At least one more case is pending.
Under NEPA, all US federal government agencies are required to consider the effects that any “major actions” they take may have on the “human environment.” Agencies can exempt whole categories of routine or repetitive activities but most other decisions—such as the issuance of a new regulation, the location of a new bridge or the approval of a new agricultural technology—trigger the NEPA obligation to evaluate environmental impacts. If the agency concludes that the action will have “no significant impact” (a legal term of art), it issues a relatively brief Environmental Assessment explaining the basis for that decision. If significant effects are likely, though, the agency must prepare a comprehensive Environmental Impact Statement (EIS), which typically requires thousands of hours of work, details every imaginable effect and runs to hundreds (or even thousands) of pages.
The obligation under NEPA is wholly procedural, which means that even significant environmental effects do not prohibit the agency from ultimately taking the proposed action. Its purpose is solely to force government agencies to in fact consider possible environmental effects. However, courts have interpreted the law broadly by requiring a comprehensive review of every imaginable effect on the “human environment.” This category now encompasses not only harm to the natural ecology but also economic, social and even aesthetic impacts.
Thus, if agencies miss some tangential or speculative issue, they can be tripped up by an irresponsible litigant who alleges that the environmental review was incomplete. Even when regulators actually do consider a potential impact but reject the concern owing to its unimportance or improbability, they can run afoul of NEPA by failing to extensively and comprehensively document their reasoning. This latter phenomenon has lately plagued USDA approvals of recombinant DNA–modified crops.