Under the National Environmental Policy Act, APHIS is required to evaluate the potential environmental impacts from a "major Federal Action" - that can include the deregulation of new GE plants by the Agency. If APHIS finds that its potential regulatory decision may significantly affect the quality of the human environment, the Agency must prepare an EIS (environmental impact statement) before making a decision on the proposed Federal action.APHIS had prepared a draft environmental assessment for the crops in the Dow petition. Petitions for deregulation of these crops (which would allow commercial release) had been submitted to APHIS and published for public comments; APHIS noted that significant numbers of comments had been received. APHIS has thus concluded:
With regard to these new herbicide-resistant plants, through its analysis of information submitted by the developers, as well as public comments, APHIS has determined that its regulatory decisions may significantly affect the quality of the human environment. APHIS therefore believes it necessary under NEPA to prepare these two EIS's to further assist the Agency in evaluating any potential environmental impacts before we make a final determination regarding the products' regulatory status.Several points are worth noting about the APHIS decision and the larger debate over the use of genetically engineered crops (which are largely engineered for agronomic, not dietary purposes). In contrast to several other proposed deregulations over the last several years (alfalfa, sugar beets), where APHIS did not conduct an EIS, and was sued for noncompliance with NEPA, here APHIS is triggering an EIS of its own accord. The use of genetically engineered glyphosate-resistant crops (most famously, Monsanto Roundup Ready corn, soybeans) since the 1990’s led to extensive litigation over how APHIS managed its NEPA requirements; ultimately, judicial action compelled APHIS to prepare an EIS, and it then deregulated the crops. In the decade or more since the Roundup approach to weed management, glyphosate-resistant weeds have emerged, thus undermining the viability of this strategy for weed containment. Debate continues over whether successive waves of genetic engineering related to designated herbicides will adequately provide effective weed management (one research group describes an “accelerated transgene facilitated herbicide treadmill”). Criticism is also directed at the environmental consequences from the use of the herbicides; litigation against the Environmental Protection Agency attempted to rescind its approval of 2,4-D. However, it is notable that APHIS specifically cabins the focus of the EIS:
While the EIS’s will look more broadly at potential impacts to the environment as a whole, APHIS’ regulatory authority is based on The Plant Protection Act and the Agency’s oversight is specific to evaluating the potential for the GE plants to pose a plant pest risk to crops or other plants.While technically true, APHIS is also charged by NEPA with an evaluation that considers how a “potential regulatory decision may significantly affect the quality of the human environment.” The decision by APHIS suggests that the agency might have anticipated immediate litigation if it had not prepared an EIS, and due to the delays that previous cases have imposed, may have decided that direct preparation of an EIS was more efficient. That, of course, does not predict the outcome of the EIS. However, it will take place against the backdrop of some of the limitations to genetically engineered weed management that have been revealed by earlier containment strategies.