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

January 8, 2014
Doug Gurian-Sherman
Former contributor

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.