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Government Deregulation of Biotechnology Signals a New Era of Corporate Politics. Why We Are Fighting for Oversight of GMOs

By Maria Juur, Press and Social Media Manager and Audrey Leonard, Legal Fellow

August 02, 2021
Center for Food Safety

Last week, Center for Food Safety (CFS) filed a groundbreaking new lawsuit that seeks to revoke the industry-friendly genetically engineered (GE) organism regulations issued by the Trump administration in 2020. This lawsuit is a culmination of more than two decades of work by CFS and, at its core, highlights the perils of the ever-increasing trend toward government deregulation of major industries, including the biotechnology industry, in the U.S. and abroad.

In short, the new regulations released by the Trump Department of Agriculture (USDA) exempt broad categories of GE organisms from any pre-market approval and pass assessment duties to the companies to "self-determine" whether their products are exempt or regulated. As we lay out in the 90-page lawsuit, the rule change violated numerous core environmental laws and unconstitutionally delegated USDA's responsibilities to self-interested industry.

There's a lot at stake: The outcome of our lawsuit could determine whether GE organisms will remain regulated by the federal government, or if their approval will now effectively be left to the devices of their manufacturers, regardless of their agronomic or environmental risks.


Problems with Genetically Engineered Crops

First approved in the 1990s, the vast majority of U.S. commodity crops grown today—corn, soybeans, and cotton—are genetically engineered. It is estimated that upwards of 75% of processed foods on supermarket shelves contain GE ingredients. All GE crops are developed using imprecise techniques that are known to produce unpredictable and unintended effects, which can have adverse health impacts. According to the Food and Drug Administration, the unintended effects of genetic engineering include increased levels of plant toxicants, creation of novel toxins or allergens, and nutritional deficits.

While there are no long-term or epidemiological studies in the U.S. that have examined the safety of human consumption of GE foods, the environmental impacts and injury from the cultivation of GE crops are well-documented—albeit often downplayed by the industry.

First, GE crops cause substantial harms via transgenic contamination. Time and time again, experimental and commercialized GE plants have shown their ability to escape confinement and contaminate conventional crops and wild relatives, or colonize wild places. Transgenic contamination of conventional or organic crops has cost U.S. farmers billions of dollars in market losses, as food companies, grain traders, and export markets have rejected contaminated supplies.

Secondly, pesticide-reliant GE crops are a pillar of inherently unsustainable industrial agriculture. The overwhelming majority of commercial GE crops are genetically engineered by pesticide companies to survive direct application of plant-killing pesticides (herbicides). It is estimated that GE corn, soybeans, and cotton alone have led to a 527 million pound increase in herbicide use over the first sixteen years of their cultivation, from 1996 to 2011.

Reliance on these toxic GE "crop systems" has caused a number of harms, including widespread pollution of our waterways and ecosystems, injury to beneficial insects such as pollinators, and harm to soil health. For example, the exorbitant increase in use of glyphosate (the active ingredient in Monsanto-Bayer's Roundup) on glyphosate-resistant crops has nearly eradicated the common milkweed from farm fields in the Midwest, contributing to the dramatic decline in Monarch butterflies that critically depend on milkweed for survival. Last year, in response to a petition by CFS and allies, the U.S. Fish and Wildlife Service found that Monarchs now warrant protection under the Endangered Species Act and will be listed as endangered in 2024.

Herbicide-resistant GE crop systems foster rapid emergence of "superweeds" immune to the GE crop's companion herbicide(s). For example, weeds resistant to glyphosate were virtually unknown through the mid-1990s but evolved in epidemic fashion with the massive increase in use of Roundup. These stubborn weeds now infest at least 120 million acres—nearly 40% of the nation's cultivated cropland

Efforts to control these resistant weeds involve soil-eroding tillage operations and spraying increasingly toxic herbicides on newer GE crops. For instance, the use of volatile dicamba herbicide has skyrocketed since crops resistant to it were introduced in 2017. Dicamba has drifted rampantly, causing unprecedented damage to scores of crops, wild plants and trees across many millions of acres, imposing huge costs on farmers and the environment. Our lawsuit challenging dicamba's most recent EPA approval is currently under review in the Ninth Circuit.

GE crops on the horizon pose additional risks. Experimental GE crops engineered as "biofactories" for experimental drugs and chemicals have already tainted the food supply with potentially hazardous compounds and have yet to produce any useful drugs or chemicals. GE trees engineered for unsustainable energy production threaten to replace still more forest with monocultural plantations bereft of most life, while depleting water supplies and posing fire threats.

Meanwhile, applications that GE is most touted for, such as drought-tolerant corn for Africa or Vitamin A rice, have failed to materialize, while conventional breeding methods have delivered the same in spades. It's time to bust the myths: Biotechnology in agriculture—a fast-growing field "shackled" by regulation according to the industry—is not a humanitarian enterprise to assist poor farmers. It's led overwhelmingly by seed-pesticide conglomerates like Bayer-Monsanto, which are responsible for practically every acre of GE crop grown today, the vast majority in a handful of nations with highly industrialized farm sectors like the U.S. and Brazil. Their goal is not to alleviate hunger or malnutrition, but to deepen the world's pesticide addiction, whatever the cost to farmers or the environment.

The USDA has the authority to rein in these abuses through enlightened regulation—but instead has chosen to loosen even further its already weak and ineffectual rules. CFS's lawsuit seeks to recall USDA to its statutory duty to protect American farmers and defend U.S. farming from the depredations of noxious biotech agriculture.


Regulatory History

USDA has repeatedly acknowledged the need for stronger GE crop regulations since 2000, when Congress enacted the Plant Protection Act (PPA) which gave the agency broad new authority to prevent agricultural, economic, and environmental harms.

Under PPA, USDA has the responsibility to prevent plant pest risks and noxious weed risks, both of which are broadly defined agricultural and environmental harms. The PPA defines "plant pest" harms broadly, as organisms with the potential to injure or damage any plant or part of a plant. Noxious weed harms are defined even more broadly, to include a plant's ability to "directly or indirectly injure or damage crops, livestock, natural resources, public health, the environment, or other interests of agriculture." USDA referenced as an example the need to regulate GE plants that produce pharmaceutical or industrial compounds that could pose human health or environmental risks. Yet, in the new rules, USDA completely failed to invoke its authority to regulate GE plants for noxious weed risks.

After several false starts to implement its new powers beginning in 2004, the USDA under the Trump administration reversed course and instead dramatically weakened its oversight of GE organisms, bringing us to CFS and allies' current lawsuit.


CFS's Lawsuit and Claims

First, our lawsuit alleges the final Trump USDA biotech regulations fail to comply with several federal laws, such as the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and the aforementioned Plant Protection Act. USDA did not complete adequate environmental reviews—as required by NEPA and ESA—to determine how loosening of biotechnology regulations (including introduction of increasingly toxic herbicides) could impact the general public or threatened and endangered species and their habitats.

Secondly, the final rule fails to comply with the 2008 Farm Bill, which included specific new strengthening mandates for GE crop experiments because already too lax USDA oversight had caused contamination and market rejection harm to U.S. farmers.

Finally, the rules violate the Constitution and the separation of powers principles by placing agency authority in the hands of self-interested corporations. To make matters worse, by letting developers decide when experiments are exempt from regulation, the government avoids making deregulation decisions, which means public interest and consumer groups won't be able to challenge these decisions or agency actions in court in the future.


What's Next

Moving forward, the likely barrage of future exemptions—as okayed by the industry itself—means a growing class of GE plants can be grown experimentally and commercially without any regulatory review. This is bound to result in more GMO contamination episodes, multiple-herbicide resistant crops and superweeds, pushing us deeper and deeper into a "toxic treadmill" that will have increasingly detrimental effects on our public health and ecosystems.

The lack of future environmental reviews remains a serious cause for concern. Under the current rules, future exempted GE organisms are not guaranteed to be evaluated for their potential effects on endangered species and their critical habitats. In many cases, USDA will not be notified or even be aware when a new GE organism is released into the environment.

Newer types of future GE organisms would also fall under USDA's new regulatory regime, or now lack thereof. For example, scientists are already warning that the consequences of gene drives—use of a few gene-edited individuals to spread new genes through the entire population of a species—could be severe, including adverse environmental outcomes and harmful effects on vegetable crops.

CFS will continue to fight for government oversight of existing and future GMOs and transparent GMO labeling in the U.S. While our lawsuit is under review by the court, you can help fuel this fight by making a contribution to support our legal work today. Thank you for standing with us!

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