October 29, 2012

Court Rules on Challenges to Genetically Engineered Crops in National Wildlife Refuges

There is an update on the lawsuits brought by a coalition of food safety and environmental advocates to challenge the U.S. Fish and Wildlife Service (FWS) for their practice of granting permission for the planting of genetically engineered (GE) soybeans and corn in the national wildlife refuges (see here). The national wildlife refuges are a "national network of lands and waters for the conservation, management, and where appropriate, restoration of the fish, wildlife, and plant resources." The legal actions were filed on a regional basis and alleged that FWS has allowed the planting of GE crops in refuges without conducting an Environmental Impact Statement (EIS) as required by the National Environmental Policy Act (NEPA). These plantings are part of a FWS program that designates a portion of a refuge for agricultural purposes. One of the concerns is that many of the GE crops are Roundup Ready crops, engineered for herbicide-resistance, and GE crop plantings result in more introduction of herbicides into the natural habitat. Thus, the plaintiffs have alleged two forms of harm to a refuge from GE crops: genetic contamination of natural species and chemical harms from the herbicides. 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 (the EIS) 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 these lawsuits. 

To date, the plaintiffs' coalition has won rulings in earlier challenges to the planting of GE crops in the national refuges, where the courts have ordered FWS to conduct the requisite EIS (e.g., the Northeast region). In two recent rulings that illustrate the regionally-specific analyses, Judge Boasberg in D.C. District Court upheld the challenge to the Southeast region plantings, ruling that an FWS phaseout in 2013 was not an adequate response to an allegation of incomplete environmental review. In a parallel challenge to GE crop planting in the Midwest region, Judge Boasberg ruled that FWS had made an adequate environmental assessment in view of its stated objective). 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, has contended with individual lawsuits seeking to get an EIS prepared or to get an environmental assessment evaluated. On balance, it is likely that national wildlife refuge policy is evolving to conclude that the planting of any GE crop on land that is designed to house and maintain natural habitats is no longer compatible with the introduction of GE crops. Certainly, the widespread use of GE crops in general practice undermines any need for a national refuge to be a repository for such species.

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