Six environmental advocacy organizations filed suit last week against the USDA, challenging the agency’s May 2020 rule that brazenly removes most genetically engineered (GE) plants from its oversight. Specifically, the new rule exempts all GE plants that could have been developed via conventional breeding methods, plants created with a deletion or single base pair substitution, and plants with a “plant-trait-mechanism of action” combination that has been previously deregulated, without regard to the actual environmental risks at play.
The rule is bad science, bad policy, and bad law. It misses a critical opportunity to tighten restrictions on GE plants, renouncing all authority to regulate them as “noxious weeds.” USDA is clearly tasked with reviewing potentially risky applications of plant biotechnology, and its explicit deregulatory attitude grants an already ultra-consolidated industry even more leverage to exploit farmers and seed for maximum profit as environmental dangers abound.
What authority does (or did) USDA have?
The 1986 “Coordinated Framework for the Regulation of Biotechnology” outlines the responsibilities of EPA, FDA, and USDA regarding GE plants. A patchwork of laws—most of them drafted before the advent of modern plant biotechnology—governs the agencies’ specialized regulatory functions.
The opening line of the Plant Protection Act states that USDA’s regulation of “plant pests” and “noxious weeds” is “necessary for the protection of the agriculture, environment and economy of the United States.” Both have relatively broad and overlapping definitions: the former is any organism that might damage a plant, while the latter is any plant that could harm agricultural or environmental interests. When USDA identifies either, it can issue a complete ban on interstate sales and movement to prevent further dissemination.
In the previous rule, nearly all GE plants fell under the scope of USDA regulation backed by the theory that they inherently posed a plant pest risk since most were created using genes from bacteria that were known plant pests. Starting in 1987, field trials of GE plants were monitored via a “permitting” process, which required the grower to implement certain measures to reduce the likelihood of contamination. A more lenient “notification” system was instituted in 1993 that removed the need to seek pre-approval. Seed companies seeking to commercialize a GE variety had to submit a petition for deregulation, and USDA would assess whether the variety carried a greater plant pest risk than its conventional counterpart. For each petition, comment periods were held to solicit input from community stakeholders, and an Environmental Impact Statement (EIS) was drafted pursuant to the National Environmental Policy Act (NEPA).
The new rule automatically deregulates a huge swath of GE plants, claiming that they pose no additional concerns due to the similarity of the breeding methods and genetic material to those found in nature. There is no longer an avenue for community input, no comprehensive data collection or reporting requirements, and no analysis under NEPA of the potential environmental impacts. Proponents of the new rule cited “regulatory relief”—in other words, let the corporations handle it on their own—while in reality the lack of data will only serve to further obfuscate the extent of the harms caused by widespread GE crop use.
Implications of the New Rule
The new rule will further entrench the biotech industry’s dominance in the seed trade. GE crops have caused myriad problems, including transgenic contamination, biodiversity loss, industry consolidation, proliferation of super-resistant weeds, and overreliance on harmful herbicides and pesticides.
Transgenic contamination has caused billions in losses and weakened trust among international buyers. There is a deeply unfair allocation of risk: farmers growing non-GE crops shoulder nearly all of the burden of preventing and monitoring contamination, engaging in costly measures such as careful isolation and rotation systems, routine genetic testing, or avoiding planting certain varieties altogether.
The U.S. is experiencing an alarming decline in agricultural biodiversity, largely due to the industry model of promoting a handful of genetically uniform commodity crops with profits in mind rather than public health. Genetic diversity—both within and among species—is vital to withstanding a variety of environmental stresses, from shifting climates to novel pests and weeds. Consolidation and privatization of seed allows the industry to dictate choice in the marketplace and impose an artificially low supply of non-GE seed, even in the face of rising demand.
USDA failed to invoke its authority to regulate noxious weeds in the midst of a severe weed crisis. Most GE crops are modified exclusively for the purpose of working in tandem with a specific herbicide or pesticide, and dependence on a small number of crops with uniform traits places potent selection pressure on weed populations to develop resistance to these traits. Glyphosate-resistant weeds can now be found in upwards of 40% of cropland in the U.S, and farmers are using more herbicides with to deal with the issue. The industry’s response has been to develop new GE seeds that are resistant to the more powerful and toxic herbicides 2,4-D and dicamba. But these measures haven’t worked: weeds are quickly developing resistances to these chemicals too, and dicamba in particular has been shown to spread dangerously quickly, causing “the most extensive drift damage ever seen in the history of U.S. agriculture.”
The suit alleges that the rule violates the agency’s constitutional directive to regulate plant pests and noxious weeds as well as several federal statutes.
First, the Endangered Species Act requires federal agencies to consult with the Fish and Wildlife Service when a proposed action or rule may affect an endangered species. The USDA did not initiate any consultation, despite a clear link between the proliferation of GE crops and native plant and wildlife populations.
Second, USDA did not explore reasonable alternatives to their proposed course of action as required by NEPA, which directs agencies to incorporate a comprehensive EIS into their decision-making process in order to foster environmentally sound policy.
Third, the 2008 Farm Bill reiterated the need for tougher restrictions after dozens of contamination events left farmers in dire straits as many of their crops could no longer be certified transgene-free. The Farm Bill specifically directed USDA to “improve management and oversight of articles regulated under the PPA.” The new rule takes “improve” in this context to mean “reduce,” which is hardly a defensible reading of the text or legislative history of the law.
The proliferation of GE crops bolsters the massively consolidated state of the seed industry, making it difficult for organic and non-GE farmers to compete in the marketplace and degrading ecological health by promoting excessive herbicide use and genetic uniformity. Good data is something that should—but sadly, doesn’t often enough—frame modern debates on environmental science. The lack of accountability espoused by the new rule obscures the potential risks farmers and consumers face, and makes it more difficult to identify problems when they do inevitably arise.
Courts reviewing administrative rulemaking employ the “arbitrary and capricious” legal standard, vacating the rule only if the agency’s actions are profoundly deficient, run contrary to established evidence or law, or rely on factors expressly discounted by Congress. While this means that agencies generally enjoy significant deference, “capricious” is the perfect word to describe a law so woefully out of touch with science and the intent of almost everybody except the biggest seed firms and the lawmakers they have swayed. The court should recognize this and order the USDA to do their job.