Federal courts lose some power to regulate GMOs

New industry-friendly law passed in recent budget bill

Dave Murphy, founder of Food Democracy Now!
Photo by Lisa Stokke

When President Barack Obama signed Congress’s budget bill on March 26, a government shutdown was averted — but many citizens were outraged. A paragraph that could affect the regulation of genetically modified (GM) crops had slunk into the 240-page draft. Some members of Congress have told the media they didn’t know the rider was in the bill. Experts can’t predict how it will affect farms and health, but they agree that it reflects fundamental problems about how laws are written.

The provision debuted in drafts of other bills last summer. It says that if a court questions a crop’s approval, or decides it needs further safety testing, the crop can still be grown and sold to consumers while the Department of Agriculture completes an analysis. Several media sources report that Sen. Roy Blunt, R-Mo., worked with Monsanto to craft the rider. (Neither Blunt nor Monsanto responded to Boulder Weekly requests for comment.)

Opponents dubbed it the “Monsanto Protection Act” after the biotechnology giant.

“They’ve been trying to get this passed for a while,” says Susan Schneider, director of the University of Arkansas graduate program in agricultural and food law. She’s troubled by how it was tucked into a spending bill, rather than openly debated. But because the spending bill only applies to this fiscal year, the rider will expire in September. (Schneider predicts it will reappear in a farm bill.)

When it surfaced in the spending bill in March, it went viral. The Internet erupted with concerns about experimental crops being planted while GM crops’ long-term effects on human and environmental health remain largely unknown. A petition to Obama by Food Democracy Now! garnered more than 300,000 signatures.

But the group’s scheduled meeting with the White House was cancelled, says its founder, Dave Murphy. Hours later, Obama signed the spending bill into law. If it hadn’t been signed, the government would have partially shut down the next day.

“They [Monsanto] knew this was a must-pass bill,” Murphy says. Wenonah Hauter, executive director of advocacy nonprofit Food and Water Watch, agrees.

She and Murphy say Monsanto took advantage of a crisis in government.

The provision demands that the secretary of agriculture “upon request … immediately grant” temporary permits to anyone who wants to grow a crop, regardless of judges’ decisions. Supporters call it the “Farmer Assurance Act.” They claim it will protect farmers against activist court cases. In recent years, there have been lawsuits over crops — including GM sugar beets like those grown in Boulder County. But the temporary permits were issued even then, at the discretion of the Department of Agriculture.

Sen. Jon Tester, D-Mont., Congress’s only working farmer, vocally opposed the rider, calling it “giveaways worth millions of dollars to a handful of the biggest corporations.”

Other opponents say it even violates the country’s founding principles.

“Our separation of powers is such a fundamental part of our checks and balances,” says Schneider, “and this blatantly interferes with the judicial process.”

Bryan Endres, a biotech expert who teaches at the University of Illinois, says that altering the judicial review for GM crops is wrong, but not quite unconstitutional. He emphasizes that the bill also diminishes the Secretary of Agriculture’s power, because the secretary has no choice but to issue permits that were once issued at his discretion. These new limits on government power trouble other critics, too.

“The Monsanto Protection Act makes the Secretary of Agriculture impotent to protect family farmers and consumers,” says Murphy, “and it interferes with a judge’s ability to issue an injunction.”

“It’s clearly special-interest legislation that only benefits biotech companies and the people who market these crops,” Schneider says.

It might benefit a few politicians, too. Blunt, who eventually took credit for introducing Monsanto’s provision, received more than $70,000 in campaign contributions from Monsanto in 2012, according to the Center for Responsive Politics. Hauter says statistics show the biotech industry spent half a billion dollars on lobbying politicians over the past decade.

Critics blame the cozy relationship between government and industry for biotech-friendly decisions. For example, they say Obama’s campaign promise to label GM foods vanished. In December 2012, the administration abruptly ended its investigation into Monsanto’s antitrust practices.

“Monsanto, Dupont and Syngenta have a monopoly over genetically engineered seeds,” Hauter says, and they’re raising seed prices.

So while the provision may only be law until September, activists are concerned about its longer-term impacts.

Dave Murphy worries about how easily GM crops can contaminate other crops. Thanks to the provision, now if a cross-pollinating crop gets out of hand, it can’t be stopped by a court order. It can freely spread its altered DNA, threatening the supply of non-GM seeds.

“Because of this controversy it created, and because it’s only for six months, it might be more on people’s radars, to object to it in the next go-around,” Endres says. “It’s unlikely to pass as a stand-alone issue, but if it’s stuffed into another appropriation bill again …” He trails off.

When crisis looms, no one can predict what a “must-pass bill” may contain.

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