Despite many years of success with genetically modified plants, various environmentalists won't stop trying to obstruct biotech foodstuffs. First they tried to frighten consumers away from so-called "Frankenfoods." That hasn't worked, so now they're challenging the procedures that the government uses to approve genetically engineered crop varieties. Two recent lawsuits, involving alfalfa and sugar beets, illustrate the harm that this nuisance litigation can cause.
Federal agencies are required under the National Environmental Policy Act of 1970 to consider the effects that "major actions"—new regulations, the building of a highway with federal funds, or the approval of new agricultural technology, for instance—may have on the "human environment." If an agency concludes that the action will not have a significant impact, it will issue a relatively brief environmental assessment explaining the basis for its decision. If significant effects are likely, it must prepare a comprehensive Environmental Impact Statement that details every conceivable effect and requires thousands of bureaucrat-hours to prepare.
Thanks to previous prodding by environmentalists, courts have interpreted "human environment" to include not just tangible ecological harms to humans but also hypothetical impacts that are economic, social, cultural, historic or even aesthetic. Thus, if an agency fails to address some tangential or inconsequential issue, activists can take it to court, alleging that the environmental review was incomplete or its conclusions inadequately documented. That's what is now happening to the U.S. Department of Agriculture (USDA).
In 2005, the department approved the sale and use of alfalfa and sugar beet seeds that have been genetically modified to be resistant to the herbicide glyphosate, the active ingredient in a product known as Roundup. In each case the approval was based on an environmental assessment. Similar biotech crops have been in use for 17 years with no hint of harm, but in 2006 and 2008 environmental organizations and organic farmers sued in federal court, demanding that the USDA prepare full environmental impact statements. These suits have been hugely disruptive for plant breeders, the seed industry and especially farmers.
Agriculture Department scientists evaluated data from hundreds of government-monitored field trials conducted over almost a decade, along with numerous other studies on the real-world effects of Roundup-resistant crops (marketed as "Roundup Ready"). The genetic trait introduced—resistance to the herbicide glyphosate—is harmless to humans and other animals. Several other Roundup Ready crop varieties such as corn and soybeans are already grown on more than 60 million acres each year in the U.S. alone. Thus the department concluded that an environmental assessment was all that was necessary.
Nevertheless, one federal judge revoked the department's approval of biotech alfalfa in February 2007, and another revoked the approval of biotech sugar beets this August, until the USDA prepared full-scale environmental impact statements. Earlier this month the agency published its Environmental Impact Statement for alfalfa, and not surprisingly found no environmental harm.
Regulators have a few more hoops to jump through before they can reapprove the alfalfa variety—probably not in time for the seeds to be planted in 2011, however. Fortunately, farmers who planted Roundup Ready alfalfa were permitted to continue growing and then harvest that initial crop, so the overall effect on them will be limited.
But the sugar-beet environmental impact statement could take a couple of years to complete, and growers (whose crop accounts for about half of the refined sugar consumed in the U.S.) are in a dire situation. An estimated 95% of the sugar beets grown in the U.S. are of the Roundup Ready variety.
Because so many growers must now switch back to conventional seeds, there will be a shortfall for planting in 2011, and consumers will soon feel the pinch of sharply rising costs. The wholesale commodity price of sugar shot up 55% between August and November, largely as a result of the court's decision.
Ironically, seeds that are developed by conventional cross-breeding techniques are essentially exempt from regulation, even though the genetic changes introduced by this traditional practice are often numerous, complex, and poorly characterized. Only genetically engineered varieties, which are more precisely crafted and whose changes are more predictable, are subject to special scrutiny.
This illogical regulatory burden exists only because 25 years ago the Agriculture Department rejected the scientific community's consensus that no special regulations were needed for genetically engineered plants. Instead, it chose to require a mandatory pre-approval process, thereby spawning the "major actions" that trigger Environmental Impact Statements.
Lawsuits to obstruct demonstrably safe and ecologically beneficial technologies make a mockery of environmental law. The litigation and those responsible for it—not biotech crops—are the real nuisance.
Mr. Conko is a senior fellow at the Competitive Enterprise Institute. Dr. Miller, a physician and fellow at Stanford University's Hoover institution, was the founding director of the FDA's Office of Biotechnology.