Court rules biopharm permits issued illegally in HI

Citing possible harm to Hawaii's 329 endangered and threatened species, a federal district judge has ruled that the US Department of Agriculture (USDA) violated the Endangered Species Act (ESA) in permitting the cultivation of drug-producing, genetically-engineered (GE) crops throughout Hawaii. The court found that USDA acted in "utter disregard" of the ESA and also violated the National Environmental Policy Act (NEPA), by failing to conduct even preliminary investigations prior to its approval of the plantings. The Aug. 10 decision represents the first federal court ruling ever on "biopharming," the controversial practice of genetically altering food crops to produce experimental drugs and industrial compounds. Biopharming has provoked the ire of the food industry, public interest groups and farmers concerned about contamination of foods and the environment with potent drugs and potential economic losses from adulterated food. The court case, which was initially filed in 2003, pertains to four USDA-issued permits which authorized Monsanto, ProdiGene, Garst Seed Company and Hawaii's Agriculture Research Center to plant over 800 acres (1.25 square miles) of drug-producing corn and sugar cane at various sites in Kaua'i, O'ahu, Moloka'i and Maui from 2001 to 2003. At issue is the lack of control mechanisms to ensure that GE crops used in field trials do not escape, as GE plant strains could contaminate the habitat and food chain through cross-pollination with neighboring crops or ingestion by animals. "The use of food crops to produce materials not intended to be in the food supply must only proceed under systems proven to prevent any contamination or adulteration of the food supply," said Jeffrey Barach of the Food Products Association in Washington. "To date, effective control programs have not been demonstrated to our satisfaction." The plaintiffs in the case, represented by the public-interest law firm Earthjustice, were–the Center for Food Safety, Friends of the Earth, Pesticide Action Network North America and KAHEA (the Hawaiian-Environmental Alliance). They charged that USDA's Animal and Plant Health Inspection Service (APHIS) broke the law by not considering the potential impacts of the biopharmaceutical crops on endangered species. In a toughly worded 52-page decision, Judge J. Michael Seabright said APHIS, which grants permits for the planting of GE crops, flouted both the ESA and NEPA by not conducting preliminary environmental reviews before issuing the planting permits. The ESA mandates the gathering of information about local listed species and critical habitats while NEPA requires federal agencies to evaluate the impact of their actions on the environment. "APHIS's utter disregard for this simple investigation requirement, especially given the extraordinary number of endangered and threatened plants and animals in Hawaii, constitutes an unequivocal violation of a clear congressional mandate," wrote Seabright in his decision. Even if APHIS is correct in its assertion that no habitats or species listed as endangered were harmed by the plantings, the agency's actions are still "tainted" because it failed to comply with a basic procedural requirement, Seabright said. "This is probably the strongest message yet to USDA that they need to do a much better job at regulating all genetically-engineered crop field trials," said Bill Freese of the Center for Food Safety, noting that about a dozen biopharm permits are approved in a typical year. "They've been rubber-stamping for too long and they need to get serious about these crops." While the decision is the first federal court ruling involving biopharming, it is not the first federal critique of APHIS's oversight regarding GE crops. A December 2005 audit by the USDA's Office of Inspector General found multiple failings in the agency's enforcement of research rules for GE plants. Since the Hawaii ruling, the need for tighter regulations within the USDA was underscored by two separate instances of GE organisms escaping from field trials. On Aug. 18, a type of GE long grain rice that has not been approved by the USDA was found mixed with USDA-approved rice in storage bins in Arkansas and Missouri. As the bins contain rice from several states, the USDA has thus far not been able to trace its origins. Upon news of the contamination, Japan banned all long grain rice imports from the US and the European Commission suggested that such a move is possible in Europe as well. In Oregon, a new study is about to be released by the EPA regarding a GE version of creeping bentgrass, which has been developed for use on golf courses and was found to have escaped into the wild. The GE bentgrass was found up to 2.4 miles from a test plot used to develop the grass and has spread through seed dispersal and hybridization with wild grass of the same species. The study, to be published in the journal Molecular Ecology, provides the first scientifically-verified instance in the United States in which a GE organism has established itself outside a farm. "It is a cautionary tale that you have to think about the possibility of plants escaping into populations where there are wild relatives present," said Jay Reichman, EPA scientist and lead author of the Oregon study.