Fait Accompli—USDA Decision on Herbicide-Resistant Crops Betrays Farmers and the Public

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On Friday, January 3, the U.S. Department of Agriculture (USDA) released a draft environmental impact statement (EIS) under the National Environmental Policy Act (NEPA). This clears the way for approval of engineered soybeans and corn resistant to the herbicide 2,4-D, pending a final EIS and pesticide tolerances from EPA.

2,4-D is notorious for causing severe damage to many fruit and vegetable crops from drift after spray application. .The photo shows 2,4-D damage to a grape leaf. It is unlikely that this kind of harm would fit the definition of a plant pest under the PPA. Photo by Ontario Agriculture Ministry

The photo shows 2,4-D damage to a grape leaf. It is unlikely that this kind of harm would fit the definition of a plant pest under the PPA. Photo by Ontario Agriculture Ministry

As I noted in my last post, and in our new short report on GMO crops resistant to 2,4-D and dicamba, these crops will only exacerbate resistant weed problems and environmental risks. 2.4-D has also been associated with human health risks, such as non-Hodgkin’s lymphoma, and is considered by some health agencies to be a possible human carcinogen. The herbicide is also notorious for causing severe damage to many fruit and vegetable crops from drift after spray application. Despite these problems, some of which were acknowledged by USDA, the agency claimed that its existing regulations require approval (called deregulation in USDA parlance).

The legal basis for USDA regulation

As the agency notes, NEPA is largely a procedural law, and it is generally agreed that it does not provide for interventions like preventing the commercialization of GMO crops.

The legal authority to prevent the commercialization of a GMO instead is found in the 2000 Plant Protection Act (PPA). Under this law, USDA decides whether the engineered crop can be deregulated based on whether it is a plant pest. But a plant pest is not something that is usually associated with crops, or even weeds. Instead, as the term suggests and as the law specifies, plant pests are typically plant diseases, caused by bacteria, fungi, viruses, or nematodes (microscopic worms).

The only plants that typically fall under the definition of a plant pest are parasites like broomrape or striga. The large majority of weeds, or GMO crops, would not be parasitic, even if they caused harm. Because the law covers indirect harm to crops, it is not out of the question that USDA could stretch the definition of a plant pest to include GMO crops. But the historic use of the term, and the organisms specified by the law, mitigate against this, and could allow for legal challenge.

USDA explains the plant pest provisions in the executive summary of the draft EIS this way:

APHIS’s regulations require that APHIS make decisions on the petitions it receives for nonregulated status. The Agency can choose to approve a petition in whole or in part, or it can deny the petition. The decision is based on a plant pest risk assessment for the GE plants that are the subject of the petition. Plant pest risks are those risks caused by plant pests that can cause injury, damage, or disease to plants or plant products.

Weeds do not typically cause these types of harm, but rather compete with other plants.

GMO crops that encouraged excessive use of an herbicide that harmed the environment or human health, led to more resistant weeds, or harmed populations of desired organisms, like monarch butterflies, are excluded by USDA from the definition of a plant pest.

Because of the regulatory limits of NEPA, the earlier decision by USDA that the 2,4-D resistant crops are not plant pests was the action that really opened the door for the approval of these crops.

USDA’s inadequate regulation of GMOs is self-imposed

To listen to USDA’s explanation, one might think that the agency’s hands had been tied by Congress or an act of God. But in reality, the agency itself is to blame.

From USDA’s description of the PPA, one could assume that there are no other options than evaluation of GMOs as potential plant pests. But that’s not so. The PPA also contains a broadly worded noxious weed provision that would give USDA the ability to evaluate and regulate GMOs based on a wide range of direct and indirect harms.

Quite simply, USDA is using the wrong standard to evaluate the environmental impact of GMOs.

But despite being passed 14 years ago, USDA still has not developed regulations to implement the PPA. So the noxious weed provisions of the law are not being used.

The Bush administration, in its final days, proposed regulations under the PPA. But their definition of noxious weeds would have set the bar so high that even GMOs that cause a large amount of harm could evade regulation. For example, USDA listed some of the very most invasive weeds and their properties to define the standard for GMOs, such as those that “completely overrun the environment,” or cause damage to farm machinery. Lesser, but still very substantial harm, could escape regulation.

Fortunately, the Obama administration has not finalized those regulations. They would have been worse than nothing. But that leaves the agency in its current state of inappropriate and inadequate regulations.

Does USDA really want adequate regulation for GMOs?

Major regulations take a lot of work and time to complete, but 14 years is more than enough. This leads me to wonder how serious USDA really is about getting out from under its inappropriate plant pest standard.  The federal government, and the executive branch in particular, has been a supporter of GMOs domestically and internationally. USAID has been a vocal proponent of GMOs. As but one example, the agency’s web site promotes Bt eggplant in India, despite strong opposition within that country.

This raises the question of whether USDA’s regulatory body for GMOs, the Animal Plant Health Inspection Service (APHIS), is avoiding finalizing reasonable PPA regulations for noxious weeds because it really does not want that authority. Does it prefer to retain weak regulations for the very reason that it gives it a legal excuse to avoid hard decisions that the industry would not like?

Unfortunately, the lack of regulations that could address potential risks from GMOs leaves farmers and the public without sufficient regulatory protection. As things stand, the USDA can figuratively shrug and say, “Gee, we just don’t have the authority under plant pest standards to consider those risks.” But when we look a little deeper, we see that it is the USDA itself that is responsible for the current state of affairs.

Posted in: Food and Agriculture Tags: , , , , ,

About the author: Doug Gurian-Sherman is a widely-cited expert on biotechnology and sustainable agriculture. He holds a Ph.D. in plant pathology. See Doug's full bio.

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  • jim martindale

    Thank you Cynthia for exposing the real focus of all GM science. The deceptions concerning food safety, the exploding world population, the ability of GM to feed us all better and just a few superficial lies. Be sure to read Engdahl’s Seeds of Destruction book. I reported in other places last week that here in Indiana soybean merchants are already going to producers with free 2,4-D tolerant seed, free 2,4-D and a guaranteed market.They are not waiting for the outcome of the public comment period. They already know the answer. We will see weeds like marestail, common ragweed and lambsquarters become resistent in a very few years. They become resistant bio-types from the proliferation of the GM event peptides which are proliferated in the soil after being introduced by the traited seed.
    How do the farmers miss this? They have already experienced it with Round-Up resistent weeds!!!

  • jp oz

    Mike — regardless of Gages comment, I’ll tell you what brings me to the brink of hysteria: the fact that I fed my infant daughter formula that unknowingly contained GMO’s and now wondering if her multiple life threatening food allergies are a result of this ingestion. I look at the stats; I see that since GMO’s were introduced into our food in the mid 90′s, the incidence of food allergies has quadrupled. I find that alarming. It angers me that it is not, nor has it ever been stated on the food I’ve been consuming or feeding my family, that a GMO is/was present. Whether or not they are ‘believed to be safe’, we should be informed so that we can make a choice. I have always read labels and made choices regarding what I’ve eaten; it is beyond comprehension that this choice was betrayed by the inclusion of GMO’s in food without notification.

    • Anthony Samsel

      @jp: You might consider having your child’s urine tested for glyphosate herbicide. It is pervasive in the US food supply. 90% of all soy tested contains glyphosate residues. Sugar, corn, canola, soy and vegetable oils are all contaminated with the herbicide. There is a lab in the US now testing for glyphosate. Here is a website that has more information about testing:

      Glyphosate also circulates in the blood and accumulates in the tissues contrary to the manufacturer’s claims that it is totally passed in the urine and feces.

  • Anthony Samsel

    The approval of this technology is total insanity. Its developed by product development morons who have no understanding of the products effects on human physiology. These products are marketed by companies who’s only concern is return on investment through a patented product. Their emotional claims that these products are necessary to feed the world are pure rubbish, actual science fiction !

    In 2013 I conducted field and greenhouse experiments with an isogenic line of GM corn evaluating HT (herbicide tolerant) and IT (insect tolerant) traits and there effects on soil bacteria. I found these protein traits from GM plant material turned into the soil to be destructive of soil microbes by as much as 30 to 80% depending on engineered traits. It also impacts earthworm populations. I also found GM corn to produce substantial quantities of formaldehyde and differences in nutrient content contrary to industry claims. The experiments continue in 2014 and expand to other GM crops, the results of which will be published in a peer reviewed journal.

    There are major problems associated with this two part technology of GM plants and associated chemicals that are not being considered. The GE events, both IT and HT are problematic, not just the chemical herbicide itself. Both are destructive of the bacterial balance of soil bacteria and that of the human gut micro biome where 80% of the immune system resides. The effects of which lead to disease and death. The technology must be abandoned.

    • Foster Boondoggle

      Just out of curiosity: do you have any proposal for what the mechanism at work in this effect might be? Roundup resistance is the addition of a gene for an amino acid producing enzyme that bypasses the one blocked by Roundup. In other words, the plant can continue producing an amino acid that it already produced before. The Bt trait causes the plant to produce a complex protein that affects a narrow spectrum of insect pests. How then are these causing such dramatic harm to soil biota? You’re a scientist, so I take it not one of the folks out there ranting about the poisoning of their precious bodily fluids. Please elaborate: what’s going on? And does, e.g., superficial Bt spray have the same effect? If not, what mechanism causes the difference?


      • Anthony Samsel

        Thanks for your question Foster. First, I was surprised how sensitive worms and bacteria are to these traits and I’m continuing to repeat the experiments and to look at a wider variety of crops. I recently read a GM event registration document where Syngenta guaranteed Japan that these same GM events did not affect soil microorganisms. I now question the validity of the statements they made. I’d like to see their test data. All of my total bacteria counts showed remarkable differences as compared to the control across the isogenic line. As for the mechanisms and comparison between GM IT traits and spray material, I will describe that in the paper when written up.

        Concerning Bt CRY proteins in GM IT and spray material, both are not the naturally occurring types of the toxic proteins. The Bt in use today has been engineered to be more virulent and many are of these, can be used as stacked traits for wider target species. Even the stuff used as a spray on crops is remarkably different from the naturally occurring soil organism in virulence.

        Concerning formaldehyde, I had considered that possibly glyphosate was responsible, but its not. Formaldehyde occurred in all of the samples tested. The experiments are continuing with older non-GM varieties without formaldehyde and the nutrient content is also significantly different. No wonder cows and animals when given a choice void the GM varieties. Even the deer and the crows here in NH left the GM stuff alone. They probably detect something we can’t.

        On glyphosate tolerant varieties, residues were consistent and substantial at the manufacturer’s recommended application rate.

  • Mike Rasberry

    David Gage, Do you have any idea just how long your scenario would take to play out? Millenia. The histeria being promulgated here is laughable.

  • Gregory Rossi

    Isn’t there anything we can do to put pressure on them?

    • Doug Gurian-Sherman


      Good questions. There is a 45 day official comment period whereby anyone can send a public comment to USDA.

      But given the long-held proclivities of the agency, and the federal government in general, other venues should also be considered. For example, the growing movement for labeling GMO ingredients in foods also indirectly sends a message of concern about the technology to policy makers. It is the most organized public effort on GMOs, and so something that can be worked on. Although the message would not be on point regarding herbicides, which merits focused actions as well, it will sensitize those in power to be more receptive to all GMO issues.

  • http://TheEquation David Gage

    Please take a deeper look at the problem this world faces when you are dealing with such issues as greater and safer food production. This world is on a path of self-destruction based upon the human animal’s prolific need to procreate which in turn is directly destroying that which we need to survive. Those in the science and academic worlds need to take a better look at the world’s survival and not just the short-term fixes which look good.

    • Cynthia

      David Gage I am not understanding what human procreation has to do with humans being poisoned. This issue is serious and people are going to die over this. And you and your family is being targeted as well.

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