In spite of more than twenty years of scientific, humanitarian, and financial successes and an admirable record of health and environmental safety, genetic engineering applied to agriculture continues to be beleaguered by activists. Gene-spliced, or so-called genetically modified, crop plants are now grown on nearly 150 million acres in the United States alone, helping farmers to increase yields, reduce pesticide spraying, and save topsoil — and without injury to a single person or damage to an ecosystem. But this remarkable record hasn’t kept radical environmentalists from condemning and obstructing the technology. When they can’t sway public opinion with outright misrepresentations or induce regulators to reject products, activists have resorted to vandalism of field trials and, finally, to harassment with nuisance lawsuits.
Environmental activists succeeded in alarming the American public about gene-spliced crops and foods for a time during the 1990s and the early part of last decade, but they cried wolf so often in the face of an unbroken string of successes that the public began to tune them out. More recently, the activists have had to dig deeper into their bag of tricks and revive a proven strategy for obstructing progress: litigation that challenges the procedural steps government agencies take when approving individual gene-spliced crops. Since 2007, a coalition of green activist groups and organic farmers has used the courts to overturn two final approvals for gene-spliced crop varieties and the issuance of permits to test several others. At least one additional case is now pending.
THE NEPA PROCESS
Under the national Environmental Policy Act (nepa), which took effect in 1970, all 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 decisions, but most other decisions — such as the issuance of a new regulation, the siting of a new road, bridge, or power plant, or the approval of a new agricultural technology — trigger the NEPA obligation to evaluate environmental impacts. If the regulatory 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 the environment is likely to be affected significantly, however, the agency must prepare a comprehensive Environmental Impact Statement, which typically requires thousands of man-hours, 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 actions. Its purpose is merely to force government agencies to consider the possibility that their actions may result in environmental effects, but courts have interpreted the law broadly and expanded its impact, 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. It has become easy, therefore, for agencies to miss some tangential matter and be tripped up by an irresponsible litigant who alleges that the environmental review was incomplete. And even when regulators actually do consider a potential impact but reject the concern due to its unimportance or improbability, they can run afoul of nepa by failing to extensively and comprehensively document their reasoning. That is exactly what happened with the challenges to approvals of gene-spliced crops.
The U.S. Department of Agriculture has approved 74 different gene-spliced crop varieties for commercial-scale cultivation, including dozens of varieties of corn, cotton, canola, potato, soybean, and tomato, as well as a handful of other crop species. In each case, the Department’s Animal and Plant Health Inspection Service (APHIS) reviewed copious amounts of data from several years’ worth of controlled field trials that evaluated the variety’s agronomic and environmental effects. And because each one of these plants is highly similar to conventionally-bred varieties already grown throughout the United States — differing only in the addition of, at most, a few genes that introduce useful and well-characterized traits — APHIS concluded that they would have no significant environmental impact.
But anti-biotechnology activists never permit facts or the judgments of experts to get in the way of their antagonism, so a coalition of environmental groups organized by the radical Center for Food Safety joined with a handful of organic farmers to sue in federal court to halt the planting of alfalfa, sugar beets, and turf grass modified for resistance to the herbicide glyphosate (better known by its trade name, Roundup). The plaintiffs were unable to make any substantive arguments that these crops were unsafe but instead claimed that aphis’s environmental assessment was legally — that is, procedurally — insufficient. They argued that a comprehensive environmental impact statement should have been prepared instead.
What were the supposedly significant environmental impacts that APHIS allegedly failed to account for in its environmental analysis? The plaintiffs made two claims: First, that the widespread adoption of gene-spliced, herbicide-resistant crops could accelerate the development of herbicide-resistant weeds and force farmers to switch to other, less safe herbicides. Second, they claimed that cross-pollination by gene-spliced crops could jeopardize the certification for nearby organic crops (because organic farming prohibits the use of gene-spliced plants).
These are hardly the kinds of ecological impacts that Congress had in mind when it enacted nepa, but the scope of that law has been expanded beyond all recognition by judges who interpret the term “human environment” to include effects that are largely economic or social. Moreover, the judges in all three cases ignored the fact that the development of herbicide-resistant weeds is not unique to gene-spliced crops but occurs commonly in all crops exposed to herbicides. The usda is well aware of the phenomenon and considers it routinely when making an approval decision. Worse still, cross-pollination by gene-spliced plants does not, in fact, jeopardize the organic certification of those crops.
Opponents have long argued that use of gene-spliced crops poses an economic threat to organic farmers, who are not permitted to use gene-spliced varieties. Pollen is disseminated by the wind, and it has been argued that plants on an organic farm cross-pollinated by a neighbor’s gene-spliced crops would no longer be organic and therefore would be denied the higher price such foods command in the marketplace. This argument is without foundation, however, because it ignores the way that “organic” is defined. The usda’s rules for organic production are based on process, not outcomes. As long as organic growers adhere to permissible practices and do not intentionally plant gene-spliced seeds, unintentional cross-pollination by a gene-spliced plant (or for that matter, the drift of a prohibited pesticide onto their crops) does not cause those crops to lose their organic status.
Antibiotechnology activists never permit facts or the judgments of experts to get in the way of their antagonism.
The possibility that weeds could eventually become resistant to herbicides at least has some basis in reality — but again, the phenomenon is a natural one and it should never have risen to the level of a cognizable environmental harm that triggers the need for an Environmental Impact Statement. Just as bacteria are known to develop innate resistance to certain antibiotics, it is well-known to farmers that weeds and pests will, over time, become resistant to individual herbicides and pesticides, respectively. The biochemical mechanisms that produce resistance vary from species to species but typically rely on subtle genetic variations in a small population that affords those microorganisms, insects, or weeds a selective advantage. Corn, wheat, and rice plants are naturally resistant to the herbicide atrazine, for example, so the herbicide is useful to control weeds when those crops are cultivated. But after repeated use of atrazine, resistant weeds began to appear just a decade after it was first introduced iIn 1958, long before the techniques of gene-splicing were even invented. (Selective pressure from a herbicide induces resistance, just as exposure to antibiotics eventually causes the appearance of antibiotic-resistant bacteria.)
Similarly, all plants — whether crops or weeds — already possess the biological precursors necessary to develop resistance to the herbicide glyphosate, which disrupts the accumulation of chlorophyll by degrading a protein that all plants make naturally. Gene-spliced, glyphosate-resistant crops are simply modified to produce more of that protein, which overwhelms the effects of the glyphosate and prevents the plants from being killed. For a glyphosate-resistant weed to emerge, it merely takes a few wild plants to evolve over time to produce more of the protein; with that selective advantage, they survive, reproduce, and become prevalent.
USDA scientists know all of this, of course, and they understand that herbicide-resistant weeds are nothing new. And although they can be problematic for farmers, weeds that have become resistant to a given herbicide can be combated simply by switching to a different one.
Moreover, there is nothing particularly novel about herbicide-resistant crop plants; breeders have been introducing herbicide-resistant varieties for decades. Indeed, many more such varieties have been developed using a “conventional” method called mutation-breeding than with gene-splicing. With the former method, breeders use x-rays, gamma radiation, or mutagenic chemicals to randomly damage the plant’s dna to create mutations — that is, new genetic variants. Mutation-breeding has been in common use since the 1950s, and more than 2,250 known mutant varieties of dozens of different crops and ornamental plants have been bred in at least 50 countries, including France, Germany, Italy, the United Kingdom, and the United States.
While seed companies like Monsanto, Pioneer, and Syngenta have been busy producing gene-spliced crop varieties, chemical giant basf has used chemical mutagenesis extensively to produce an entire line of varieties, including wheat, rice, and canola that are resistant to various basf herbicides. And during the four decades preceding the USDA's approval of glyphosate-resistant alfalfa, sugar beet, and turf grass, plant breeders in a number of countries worldwide developed at least sixteen known mutant varieties of those same three crop species. It is worth repeating that induced mutation is considered to be a conventional breeding method, so its use is not opposed by environmental activists nor is it subject to any kind of regulation in most of the world. Still, scientists agree that the gross, crude modification of plant genetic material inherent in induced-mutation and other conventional breeding methods make those varieties less predictable and arguably less safe than gene-spliced plants.
DISCRIMINATION AGAINST GENE-SPLICING
From a nepa perspective, the only thing that makes gene-spliced herbicide-resistant plants unique is that they are regulated by a federal government agency and that approval to commercialize them constitutes, in NEPA-speak, a “major action.” Even though plant scientists are virtually unanimous that gene-splicing is an extension, or refinement, of earlier techniques and that it is far safer and more predictable than mutation breeding, only the former are subject to the kind of government approval that triggers the eis obligation. In other words, simply the use of gene-splicing technology to create a plant is the trigger for, literally, an extraordinary regulatory regime.
It is ironic that the safer, gene-spliced crop varieties, whose development and environmental impacts are carefully scrutinized by the usda, are subject to the extra burden of a compulsory Environmental Impact Statement, while the potentially less-safe mutant varieties and new genetic hybrids are subject to neither pre-market assessment nor the nepa rules. This violates two fundamental principles of regulation: that similar things should be regulated in a similar way, and that the degree of regulatory scrutiny should be proportional to expected risk. USDA’s approach (as well as that of the Environmental Protection Agency, which also subjects only gene-spliced plants to a pre-market approval regime) gets it exactly backward: The amount of scrutiny, delay, and expense are inversely proportional to risk!
This eis obligation for gene-spliced crop approvals could have been avoided if the usda and other federal regulatory agencies had heeded the advice of the scientific community some 25 years ago and chosen not to subject the products of biotechnology to special, discriminatory government regulation. As long ago as 1987, the U.S. National Academy of Sciences (NAS) studied the then-emerging field of recombinant DNA technology (the technical name for gene-splicing) applied to plants and found that using these techniques to introduce new traits into crop plants posed no unique hazards — that is, that the risks of gene-spliced organisms are the same in kind as those associated with the introduction of unmodified organisms and organisms modified by so-called conventional breeding methods. Consequently, the NAS concluded that there is no scientific justification for regulating gene-spliced crops any differently than conventional ones, which are not subject to any pre-market assessment or approval requirements at all.
The Academy has reiterated that recommendation in at least four subsequent studies, the most recent of which was published in 2004, as have countless other scientific bodies around the world, including the American Medical Association, the United Kingdom’s Royal Society, and the UN’s Food and Agriculture Organization and World Health Organization. Indeed, many of these more recent studies have suggested that gene-spliced crop plants are often safer than their conventional counterparts because the techniques are more precise and their effects more predictable.
Nevertheless, bowing to pressure from environmental activists, big agribusiness companies, and the packaged food industry, the USDA and the EPA established a set of complex, excessive, expensive, and scientifically unjustified testing and approval regulations that applied only to gene-spliced plants. Had the regulators instead followed the scientific consensus, they would not have been tripped up by the National Environmental Policy Act’s paperwork requirement because, in the absence of an approval process for gene-spliced plants, there would be no “major actions” to trigger the eis obligation.
THE ENVIRONMENTAL IMPACT SUBTERFUGE
It comes as no surprise to legal analysts steeped in environmental law that the scope of NEPA's coverage has experienced continuous creep. Through a combination of prodding by environmental activists and judicial overreach, the meaning of the statute’s term “human environment” has been expanded to include not just tangible ecological harms that affect people and human communities, but also impacts that are economic, social, cultural, historical, and aesthetic, according to a decision of the U.S. Sixth Circuit Court of Appeals. Another decision, by a federal district court in Minnesota, illustrates how liberally the statute has been interpreted:
Relevant as well is whether the project will affect the local crime rate, present fire dangers, or otherwise unduly tap police and fire forces in the community . . . the project’s impact on social services, such as the availability of schools, hospitals, businesses, commuter facilities, and parking . . . harmonization with proximate land uses, and a blending with the aesthetics of the area . . . [and a] consideration of the project’s impact on the community’s development policy . . . [such as] urban blight and decay [and] neighborhood stability and growth.
In other words, almost any possible effect that anyone can imagine may constitute a significant impact under NEPA if a sympathetic judge agrees.
Even wholly outlandish claims can be sufficient to scuttle an agency’s decision. In the first ever NEPA lawsuit precipitated by a gene-spliced product, environmental activist Jeremy Rifkin successfully challenged a 1984 decision by the National Institutes of Health, which had regulatory jurisdiction at the time, to permit the field testing of gene-spliced bacteria modified to help protect crop plants from frost damage. Researchers at the University of California had discovered that Pseudomonas syringae, a harmless bacterium found on many plants, contains an “ice nucleation” protein that helps to initiate the growth of ice crystals that damage growing crops. These scientists removed the gene sequence that produces the ice-nucleation protein in the hope that spraying the resulting “ice minus” variants on plants could inhibit ice crystal formation and thereby reduce frost damage.
Rifkin’s Foundation on Economic Trends sued to stop the tests, arguing that the NIH did not sufficiently consider, among other things, the possibility that spraying the modified bacteria might alter wind circulation patterns and interfere with aircraft flying overhead. Not surprisingly, the NIH had dismissed such a ridiculous theory out of hand because the proposal was for a single small, well-circumscribed field trial. Perhaps more important, Pseudomonas syringae bacteria with a missing or nonfunctioning ice-nucleation gene were known to arise spontaneously in nature due to natural mutations, but they produced none of these hypothetical dangers.
Remarkably, without a shred of credible evidence, or even a plausible theory for such effects to occur, both a federal district court and federal appeals court allowed the challenge and overturned the NIH decision. The district court found in Rifkin’s favor, and the appeals court held that “the National Institutes of Health, in approving an experiment planned by scientists at the University of California, had not adequately assessed its environmental impact, nor had the experiment met the standard of environmental review necessary before an agency by law may decline to prepare a formal Environmental Impact Statement.” However, because Rifkin had neither proved his allegations nor was required to do so, the appellate court also ruled that the NIH could authorize such experiments in the future if their environmental effects were properly evaluated.
With such history, it is little wonder that federal courts subsequently would recognize the possibility of agronomic impacts as the basis to challenge the approval of gene-spliced crop plants or that they would respond by invalidating the approvals and requiring USDA to prepare an Environmental Impact Statement before they can be reapproved.
NEPA’S EFFECT ON FARMERS
Although unsurprising, the resolution of these lawsuits has been a nightmare for American plant breeders and farmers. In one case that involved glyphosate-resistant turf grass, the plaintiffs challenged USDA's decision to permit the Scott’s garden products company to test its seeds outside a greenhouse in order to generate sufficient data to support an application for full commercial approval. Another case involved USDA field trial permits to four different seed companies to grow small, geographically isolated plots of corn and sugarcane that had been genetically modified to produce proteins that would be used in medical products. The cases of the glyphosate-resistant alfalfa and sugar beet were particularly vexing to farmers, however, because the lawsuits were filed after usda had approved the varieties for commercial release and farmers had already begun to cultivate the seeds.
The alfalfa case involves the USDA’s 2005 approval of a glyphosate-resistant variety, sold under the trade name Roundup Ready by its co-developers Monsanto and Forage Genetics. To secure approval, the firms conducted nearly 300 USDA-monitored field trials over a period of eight years. APHIS scientists evaluated the data generated from these trials to determine the likely environmental impacts of an approval — called “deregulation” in agency parlance — and of widespread use of Roundup Ready alfalfa by American farmers.
Since 1996 the same genetic trait already had been incorporated into dozens of approved varieties of corn, soybeans, canola, and other crop plants grown in the United States. Therefore, APHIS was quite familiar with the glyphosate-resistance trait’s likely effects, not just from the field tests needed to secure approval but also from a decade of real-world experience. Regulators also considered hundreds of public comments on the proposed approval and concluded that deregulating the crop would not have any significant environmental impact because the introduction of the glyphosate-resistance gene is harmless to humans and other animals and was already in common use in American agriculture. Therefore, usda prepared a shorter Environmental Assessment explaining its “finding of no significant impact” and, accordingly, deregulated Roundup Ready alfalfa.
Using herbicides to control weeds — especially in the initial growing stages — is vital to the health of a crop, because weeds can compromise yield by out-competing immature plants for water, nutrients, sunlight, and space. For alfalfa growers, weed control is especially important. The crop is usually grown to be harvested as hay, which is fed to dairy cows throughout the country. If the feed hay is laden with weeds, its nutritional value plummets and both the alfalfa grower and dairy farmers lose money. Consequently, a ban on Roundup Ready seeds would not stop growers from using herbicides; they would just shift to different ones. In fact, they would be forced to use more of them, and more often. Experience with other Roundup Ready crops, for example, shows that growers typically only need to apply glyphosate herbicide once or twice, while conventional crops usually require repeated applications of several different herbicides throughout the growing season in order to achieve the same level of weed control.
The potentially negative impacts of approving Roundup Ready alfalfa are minimal and manageable.
Roughly 5,500 farmers across the United States had planted more than a quarter million acres of Roundup Ready alfalfa by 2007 when a federal district judge in San Francisco issued his opinion. After studying the plaintiffs’ arguments, Judge Charles Breyer determined that USDA’s Environmental Assessment was legally insufficient and he issued an injunction revoking the approval and prohibiting new seeds from being sold until USDA completed a full Environmental Impact Statement to evaluate concerns about glyphosate-resistant weeds and the possible impacts on organic farmers.
Preparing the EIS took USDA another three years, but in December 2010 it issued the final document and solicited public comments. Unsurprisingly, the EIS concluded what agency scientists and the scientific community already knew: Cross-pollination with and gene flow into non-gene-spliced alfalfa is unlikely because the crop is almost always harvested before it matures enough to grow seeds and pollen, so this kind of out-crossing would happen less than once in every 100,000 plants. And as discussed above, unintentional cross-pollination does not affect the organic status of a neighboring farmer’s crops. Finally, because breeders have for decades used conventional methods to develop herbicide-resistant crop varieties, farmers long ago developed common sense methods for delaying the development of herbicide-resistant weeds and they know how to cope with them when they do arise. The potentially negative impacts of approving Roundup Ready alfalfa are therefore minimal and manageable, and they are in any event far outweighed by the crop’s many substantial benefits.
USDA must now reapprove the crop, a decision eagerly awaited by tens of thousands of alfalfa growers. But even though the substantive work on the eis is complete, the administrative process of moving to final reapproval could take many additional months and probably will not be completed in time for new Roundup Ready alfalfa seed to be grown for planting by farmers in the spring of 2011. Worse still, usda announced that it will consider reapproving the variety with geographical planting restrictions intended to protect organic farmers from a risk of cross-pollination that the eis concluded was remote, and which would not be particularly damaging if it did occur. Such an unscientific and unwarranted decision would set a bad precedent for future approvals, and it could eventually prevent hundreds of thousands of American farmers from planting demonstrably safe and beneficial crop varieties. Fortunately, the original 5,500 farmers who planted Roundup Ready alfalfa when it was first approved were permitted to continue growing and then harvest that initial crop. They constitute only a small percentage of the country’s alfalfa growers, so the overall impact on the nation’s alfalfa farmers for the next growing season will be limited. A far worse fate is in store for America’s sugar beet growers.
In August 2010, another federal judge in San Francisco revoked the USDA’s approval of gene-spliced sugar beet seeds.
In August 2010, another federal district court judge in San Francisco revoked the usda’s approval of gene-spliced sugar beet seeds. That decision by Judge Jeffrey White has sown monumental confusion among sugar beet farmers, who have enthusiastically embraced the new seeds. An estimated 95 percent of the sugar beets currently in the ground are the gene-spliced Roundup Ready variety. As was the case with Roundup Ready alfalfa, the court’s injunction will permit the already planted crops to be harvested and processed. But before usda may reapprove the variety so new seeds can be sold and planted, a full Environmental Impact Statement will be necessary. The process will take years, leaving farmers in regulatory limbo in the meantime. Perhaps the biggest problem arising from this decision, however, is a looming shortage of non-gene-spliced sugar beet seeds for next spring’s planting.
About 10,000 farmers grow a total of more than one million acres of sugar beets in the United States every year, accounting for about half the refined sugar produced here (with the rest coming from sugar cane). Because the Roundup Ready variety so quickly became popular with American beet growers (which is typical generally of gene-spliced products), seed companies cut back on their production of inferior, non-gene-spliced seed. According to Duane Grant, chairman of the Idaho-based Snake River Sugar Co., which produces about 20 percent of the nation’s beet sugar, many growers fear they will have nothing to plant in 2011. “There has been no incentive, no market, no demand for conventional seed since 2008, and we believe there is not enough conventional seed available for our growers to plant a full crop in 2011,” Grant told the New York Times. All this is thanks to bad-faith litigation initiated by invidious activists and to a myopic jurist.
Seed companies are, of course, rapidly trying to ramp up production of conventional sugar beet seed, and it may be possible to import some from other countries, but it seems likely that the court’s decision will nevertheless result in an actual shortage of sugar beet seed next year. Such a scenario would be troubling in any circumstances, but may be particularly acute now because sugar production has fallen substantially worldwide during the past few years as a result of harsh weather and poor harvests. U.S. beet growers were poised to capitalize on the global sugar shortage by expanding acreage. But with seeds in short supply next year, consumers will surely feel the pinch of sharply rising prices — wholesale prices increased 55 percent between August and November last year, largely as a result of the nepa litigation — and farmers and others who care deeply about protecting the environment will actually be denied the proven beneficial effects of these crops until they are restored to the marketplace.
The usda had issued permits so that four breeders could continue planting Roundup Ready beets under tightly confined circumstances in the hope of preserving a supply of seed for use after the eis is prepared. In December 2010, however, the judge ordered those plants dug up and destroyed even though usda insisted that doing so would cause “substantial harm” to seed companies and beet growers, and although the department’s lawyers observed that “not a single piece of evidence has been put forward to suggest that these fields could cause harm.” Judge White wrote in the court order that “the legality of [usda’s and the plant breeders’] conduct does not even appear to be a close question. It appears clear that [usda and the breeders] were merely seeking to avoid the impact of the Court’s prior order.” Thus, even the strictly controlled cultivation of a small number of perfectly safe plants was sufficient to violate the gratuitous paperwork obligation.
NEPA’S ONE-SIDED ANALYSIS
What the courts’ nepa decisions fail to take into consideration is that gene-spliced herbicide-resistant crop varieties have been a huge boon to farmers, consumers, and the natural environment. For farmers, the most important benefit of Roundup Ready varieties seems to be the relative simplicity and efficacy of weed control provided by use of the herbicide-tolerant seeds. They produce higher yields with lower inputs and reduced environmental impacts. They enable more environment-friendly, no-till farming practices that prevent topsoil erosion, reduce runoff into streams and lakes, and release less carbon dioxide into the atmosphere. Furthermore, because glyphosate is not harmful to anything but plants and biodegrades quickly once it’s sprayed on crops, even the Environmental Defense Fund has called it one of the most ecologically benign herbicides ever developed. Merely switching from older herbicides to glyphosate therefore yields substantial environmental benefits. These are just a few of the reasons why farmers have made biotech crops the most rapidly adopted farming technology in history. Gene-spliced varieties with herbicide resistance and other traits are now grown on over 300 million acres by more than thirteen million farmers in 25 countries.
The fact that gene-spliced crops have clearly delivered substantial environmental benefits is irrelevant to the outcome of an Environmental Impact Statement, however, because agency actions are presumed to have some benefits. Otherwise, why would the agency take them? Ironically, even without such offsetting benefits, the National Environmental Policy Act would not forbid the government from taking actions that would on balance degrade the environment. The only function of nepa is to ensure that agencies consider whether their actions may harm the environment. As the influential U.S. Court of Appeals for the District of Columbia Circuit has noted, Congress’s enactment of nepa “did not establish environmental protection as an exclusive goal; rather, it desired a reordering of priorities, so that the environmental costs and benefits will assume their proper place with other considerations.”
On the rare occasions in which an agency decided to take an action when the environmental impacts were likely to be great and the benefits of the project small, activists could challenge the decision as arbitrary and capricious under the Administrative Procedure Act. Generally, however, the statute’s purposes are transparency and inclusiveness. It requires agencies to consider all possible environmental impacts, consider alternative approaches that would lessen the impact on the environment, and then state explicitly the justification for moving forward with a project. The public can then better judge the appropriateness of the final decision and reward or punish the president and members of Congress at the polls. Unfortunately, the presence of offsetting environmental benefits is not enough to save the project from a court’s injunction. Courts are empowered to reverse the agency decision until all the impacts are reconsidered and discussed in the form of a lengthy and often superfluous Environmental Impact Satement.
TIME FOR NEPA REFORM
The goal of transparency is a laudable one, but it is manifestly not the intention of most nepa litigation. Instead, the statute has been hijacked by environmental activists in order to slow down or prevent government agencies from taking actions they do not like. Since the law requires agencies to consider almost any conceivable ecological, economic, social, or aesthetic impact, it is literally impossible for nepa to be followed to the letter. No matter how meticulous the agency is in preparing an Environmental Assessment or eis, the statute offers fertile ground for bad-faith, obstructionist litigation.
The National Environmental Policy Act is therefore a recipe for stagnation, a particular problem when “gatekeeper” regulatory agencies must grant approvals before a product can be tested or commercialized. It seems clear, then, that something must be done to change the system. But what? Short of substantive reform of the underlying statute by Congress — the preferable solution — agencies themselves can take some minor steps to mitigate the law’s worst effects.
The goal of transparency is a laudable one, but it is manifestly not the intention of most NEPA litigation.
Under the nepa statute itself and accompanying regulations promulgated by the White House’s Council on Environmental Quality, every agency may establish a set of “Categorical Exclusions” that exempt whole classes or types of activities from the eis obligation. These may include routine or repetitive actions that, based on past experience, do not involve significant impacts on natural, cultural, recreational, historical, or other resources, and those that do not otherwise, either individually or cumulatively, have any significant environmental impacts. Indeed, for these very reasons, the usda has already categorically excluded most small-scale field trials of gene-spliced plants from both the Environmental Impact Statement and Environmental Assessment requirements. The exclusion stipulates that all large-scale field tests, as well as any field release of gene-spliced organisms involving unusual species or novel modifications, still generally require an ea or eis, but any of these features could be modified if there were sufficient scientific justification for the change.
The crafting of categorical exclusions for certain actions is not trivial. It must be accomplished via notice-and-comment rulemaking in which the agency sets forth the complete analysis and rationale for excluding the activity — which is essentially tantamount to the drafting of a comprehensive eis for the entire class of future actions. Nevertheless, given the usda’s two decades of pre-commercial and commercial experience with Roundup Ready crop plants, one could easily imagine that a decision to exempt all future glyphosate-resistant varieties could be defended scientifically. Still, even when a class of activities may appear to meet the criteria for a categorical exclusion, courts are authorized to second-guess the decision to exempt them. Therefore, no matter how scientifically sound the decision to categorically exclude Roundup Ready varieties as a class may be, it would only take an aggressive plaintiff and a sympathetic judge to render the entire effort moot on the grounds that some supposedly relevant impact was not taken into consideration when preparing the exclusion.
The most reasonable and definitive approach would be simply to eliminate the agency action that triggers the nepa obligation in the first instance — namely, case-by-case reviews of virtually all field trials and the commercialization of gene-spliced plant varieties. That would offer the dual advantages of relieving aphis’s nepa difficulties and also making regulators’ approach to gene-splicing more scientifically defensible and risk-based.
The activists’ strategy is reminiscent of the old courtroom dictum: When the facts are on your side, pound the facts; when the facts are against you, pound the table. Because there is no scientific evidence to support allegations about negative effects of genetic engineering they are pounding the table, resorting to scare tactics and wholly unfounded assertions. Nowhere in the peer-reviewed studies or monitoring programs of the past 30 years is there persuasive evidence of health or environmental problems stemming from genetically engineered seeds or crops. Quite the opposite: The technology used to produce these seeds is a paragon of agricultural progress and benefit to the natural environment.
These obstructionist lawsuits have prevented the marketing of products that offer palpable, demonstrated benefits to the environment and to the welfare of farmers and consumers. Nuisance lawsuits intended to slow the advance of socially responsible technologies are abusive, irresponsible, and antisocial. And so are those who file them. It is long past time for nepa’s burdensome paperwork requirements to be lifted from such an important and beneficial technology.