| If I read it right, the initial court case had two decisions that were mentioned frequently in the Supreme Court case: a vacatur and an injunction. "Vacatur" means "is made null and void" according to Dictionary.com and what I gathered is that the initial court decision nullified the government's decision to deregulate (i.e. allow farmers to plant without any restrictions) Roundup Ready Alfalfa. The injunction was a ban on all planting of Roundup Ready Alfalfa by farmers with the sole exception of farmers who already purchased seeds. If a farmer already purchased seeds, he or she could plant them prior to March 30, 2007.
The lower court's initial decision seemed to rest on two facts. First, the government was required to perform an EIS (Environmental Impact Statement) prior to deregulating the alfalfa. Second, if planted prior to the completion of the EIS, the alfalfa might harm farmers.
Monsanto seemed to argue that the lower court was wrong in issuing the injunction. They felt that just because the deregulation of their alfalfa was nullified, that didn't mean that no planting should occur. Instead, they wanted to have some form of partial deregulation that would allow farmers to plant GE alfalfa with certain precautions taken.
The other side argued that first of all, Monsanto had no standing to make the argument they were making. It didn't seem to me that the justices on the court were buying that. Monsanto certainly argued hard against that idea. The second argument they made was about the harm that would be done by allowing planting of GE alfalfa. First, farmers who were contaminated by GE alfalfa would lose access to European, Japanese, organic, or conventional but GE-free markets. Second, farmers growing alfalfa for non-GE seeds (not hay) would risk contamination of their seeds with the Roundup Ready seeds.
One part of the argument was about how much risk of harm they would have to prove. Was the risk of contamination and harm "more likely than not" (i.e. 50.9%)? Or could a lesser risk (like 10%) be considered as enough risk of harm to uphold the injunction. The attorney tried to use an example: What if we weren't arguing GE alfalfa but instead arguing about the deregulation of New York's drinking water? Would you need to prove a 50.9% chance that people would get sick or die from poisoned drinking water? Or would a mere 10% chance that people would get sick or die be enough to stop the deregulation?
It was at that point that Scalia said:
This isn't contamination of the New York City water supply. It's the creation of plants of -- of genetically engineered alfalfa which spring up that otherwise wouldn't exist. It doesn't even destroy the current plantings of non-genetically engineered alfalfa. This is not the end of the world. It really isn't.
The most it does is make it difficult for those farmers who want to cater to the European market, which will not accept genetically engineered alfalfa, it makes it more difficult for them to have a field of 100 percent non-genetically engineered. But that's not the end of the world, Mr. Robbins.
The lawyer (Mr. Robbins) replied, "I don't think we bore the burden, an end-of-the-world burden, Justice Scalia."
Then Justice Ginsburg pointed out that the EIS is a year away and we already know that the government wants to deregulate GE alfalfa. Therefore, the harm that may occur to farmers by GE alfalfa is imminent and a Supreme Court decision upholding the injunction would only stave it off by a year. Also, as Robbins had already pointed out, other GE crops are very popular with near universal adoption by farmers, and in all likelihood the same would happen with GE alfalfa. Therefore, if the court agreed that GE alfalfa causes harm to farmers, all they would be doing is keeping it off the market for a year.
Robbins replied that yes, that is true, but the past is prologue and the future is not yet written. He brought up the StarLink corn incident, when GE corn that was not approved for human consumption got into Taco Bell taco shells sold in grocery stores. He also cited other incidents of genetic contamination, which caused harm to businesses who couldn't sell their crops or their products after the contamination was discovered. He also said that 75% of U.S. alfalfa exports go to Japan, who won't accept GE alfalfa. (That implies to me that perhaps a lower percentage of farmers would adopt GE alfalfa compared to GE crops already on the market.)
One last point that is perhaps significant is that Robbins was asked to point to a specific farmer who was planting alfalfa for seeds (not hay) within 5 miles of a farmer who would plant Roundup Ready alfalfa seeds and who risked contamination if the injunction was lifted. He could not do this. Instead he generally said that he expected an expansion of farmers planting GE alfalfa seeds once they were able to do so, so whereas he didn't know of any farmers now, those farmers are probably out there. Also, there's more of a risk than cross-pollination, such as if farm equipment was used on a GE alfalfa field one day and a non-GE alfalfa field the next. He also said that farmers growing alfalfa for hay (not seeds) bore risk of contamination too, although he was not at all clear (in my opinion) in explaining HOW those farmers bore any risk.
All in all, I don't know what to make of this. The court was very unfriendly to the arguments against Monsanto, but they also questioned Monsanto's argument. Just because the court thinks that genetic contamination is going to happen in a year anyway and it's not actually a big deal doesn't mean that they agree with Monsanto's legal argument that the lower court decision was wrong. It would be possible for them to believe that GE alfalfa is fine but for legal reasons they must uphold the lower court decisions. Much of this case was not at all about the merits or potential harm caused by GE alfalfa. That said, I'm not terribly hopeful. |
