November 8, 2011

Litigation Continues to Challenge Planting of GE Crops in Wildlife Refuges

A coalition of plaintiffs continues a series of lawsuits that challenge the practice of granting permission for the planting of genetically engineered (GE) crops, including soybeans and corn, in the federal wildlife refuges (see complaint). The current lawsuit alleges that the U.S. Fish and Wildlife Service has allowed the planting of GE crops in 66 Midwestern refuges without conducting an Environmental Impact Statement (EIS) as required by the National Environmental Policy Act (NEPA). These plantings have occurred as part of a FWS program which designates a portion of a refuge for agricultural purposes. NEPA, passed in 1970, requires that any action undertaken by a federal agency that may have environmental consequences be thoroughly evaluated by conducting a rigorous environmental review of possible impacts and consideration of alternatives. NEPA effectively allows for citizen challenges to a broad range of federal actions that pose environmental risk through the use of a procedural objection, as exemplified by this lawsuit. No EIS was prepared here; this pattern has been followed by FWS in granting permissions for GE crops is refuges across the U.S. To date, the plaintiffs have won rulings in earlier challenges to the planting of GE crops in the refuges, where the courts have ordered FWS to conduct the requisite EIS (earlier this year, the U.S. District Court in Delaware ordered a halt to such plantings, pending the completion of an EIS). One might guess that the FWS would decide as a matter of national policy to prepare an EIS for any proposed designation of refuge property for GE plantings. The FWS, however, has been unwilling to establish such a national policy that would routinely institutionalize EIS preparation - instead, the individual lawsuits must seek adjudication to get an EIS prepared, and any GE plantings underway halted (one estimate is that GE crops are planted in 75 national wildlife refuges). This lawsuit is the fourth such legal action, and it is likely that courts will continue to conclude that the planting of any GE crop on land that is designed to house and maintain natural habitats is exactly the kind of intervention that demands the strictest legal review.

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