By KEVIN WALKER
Michigan Correspondent

WASHINGTON, D.C. — The U.S. Supreme Court heard arguments last week that could determine whether farmers will be able to use genetically-engineered alfalfa this season, or will have to wait at least another year.

Phil Geertson, owner of Geertson Seed Farms and Pat Trask, of Trask Family Seeds, sued the USDA in 2006 over its approval of genetically-engineered (GE) alfalfa. Monsanto created the product, called Roundup Ready alfalfa. The Center for Food Safety (CFS), an umbrella group representing organic seed producers including Geertson and Trask, hosted a press conference last week immediately after the supreme court hearing.

“Alfalfa is a perennial plant,” Geertson said at the teleconference. “It’s pollinated by bees that carry the pollen long distances, five to ten miles in some cases. Alfalfa is also a plant that produces a lot of dormant, or hard seeds, which can lay in the ground for many years before they germinate and come up and start a new plant.
“The other important thing is that glyphosate is the most widely used herbicide in the world, and anytime there’s a feral alfalfa that gets sprayed with glyphosate the only alfalfa plant that will survive will be the Roundup Ready plant. In just a short time, all the alfalfa plants growing in ditches and the sides of roads will be Roundup Ready.”

In May 2007, a federal judge heard this and other arguments and granted the request for an injunction, banning the further sale of Roundup Ready alfalfa. Because of this only 1 percent of acreage used for alfalfa is genetically engineered, according to Garrett Kasper, a spokesman for Monsanto. That’s about 260,000 acres of alfalfa and 5,500 growers. Kasper said Geertson’s argument about contamination of organic seed is “science fiction.”

“Ninety-nine percent of alfalfa is grown for hay at 10 percent of bloom,” Kasper said. “That’s light years ahead of any chance for it to bloom.”

He went on to say that the one percent of alfalfa grown for seed does bloom, but that there are special precautions taken in those instances to ensure that the distance is sufficient to prevent drift. Growers that grow alfalfa for seed usually use leafcutter bees, which only last for one season, he stated. He also said that the rules for organic seed producers allow for a small amount of contamination.
In August 2007, Monsanto got involved in the case. It, along with the USDA, Forage Genetics International and several Roundup Ready alfalfa growers appealed the case to the Ninth Circuit Court of Appeals. In June 2008, the court heard the appeal and in September of that year the three judge panel ruled 2-1 against them. After that they requested a rehearing before the entire court. In June 2009, the court denied that request. In October 2009, Monsanto and the others filed an appeal with the U.S. Supreme Court.

In February, the court agreed to hear the case and scheduled it for April 27, 2010. Last week, they listened to the arguments.

In the meantime, late last year the USDA completed a draft environmental impact statement (EIS), which it was required to do under the injunction. It opened the EIS, which is 1,476 pages, to a 60-day public comment period. The EIS is recommending that Roundup Ready alfalfa be granted “non-regulated” status.

“APHIS is proposing to grant non-regulated status to genetically-engineered glyphosate-tolerant alfalfa ... based on the agency’s analysis and conclusions that these genetically-engineered alfalfa lines are unlikely to pose plant pest risks,” the EIS reads.
The EIS summarizes the concern over contamination and drift in the following: “Movement of genes between alfalfa plants is dependent on weather, timing of flowering, availability of pollinators, successful pollination and time needed seed maturity.
Although the probability is low, GT (glyphosate tolerant) alfalfa genes may be found in non-GT alfalfa but cannot be considered a significant impact because, among other factors, contractual best practices have been found to produce non-GT alfalfa seed with (greater than) 99.5 percent purity.”

According to Kasper, the EIS won’t become final for another year or more, so the Supreme Court’s decision is still important.

“We’re not going to predict what the justices will do,” he said.
Last week after the hearing, environmental attorney and Center for Food Safety Executive Director Andrew Kimbrell said environmentalists have never won a case involving NEPA in the Supreme Court. NEPA stands for National Environmental Policy Act and requires federal agencies to prepare EIS’.

“We have the facts and law on our side,” Kimbrell said.
In a subsequent interview, another attorney at CFS, George Kimbrell, a nephew of Andrew’s, said that the Supreme Court decision will be a legal precedent and that the draft EIS is only a first draft.

“The USDA received about 200,000 comments against GT alfalfa,” Kimbrell said. “We hope the USDA is listening to the public comments.”