Federal Court Rules Biopharm Permits Issued Illegally in Hawai'i

Honolulu, HI —

Citing possible harm to Hawai’i’s 329 endangered and threatened species, a federal district judge has ruled that the U.S. Department of Agriculture (USDA) violated the Endangered Species Act (ESA) in permitting the cultivation of drug-producing, genetically engineered crops throughout Hawai’i. The court found that USDA acted in “utter disregard” of the ESA, and also violated the National Environmental Policy Act (NEPA), by failing to conduct even preliminary investigations prior to its approval of the plantings.

The August 10 decision represents the first federal court ruling ever on “biopharming,” the controversial practice of genetically altering food crops to produce experimental drugs and industrial compounds. Biopharming has provoked the ire of the food industry, public interest groups, and farmers concerned about contamination of foods and the environment with potent drugs, and potential economic losses from adulterated food. The four USDA-issued permits primarily at issue in the case authorized Monsanto, ProdiGene, Garst Seed Company, and the Hawai’i Agriculture Research Center to plant over 800 acres (1.25 square miles) of drug-producing corn and sugarcane at various sites in Kaua’i, O’ahu, Moloka’i, and Maui from 2001 to 2003.

The plaintiffs in the case — Center for Food Safety, Friends of the Earth, Pesticide Action Network North America, and KAHEA (the Hawaiian-Environmental Alliance) — sued the USDA in November 2003. Plaintiffs were represented by Earthjustice and Center for Food Safety.

“This decision shows that regulatory oversight of this out-of-control industry has been woefully inadequate. The agency entrusted with protecting human health and the environment from the impacts of genetic engineering experiments has been asleep at the wheel,” said Paul Achitoff, attorney with Earthjustice.

“The ruling is a clear victory for Hawai’i’s environment,” said Joseph Mendelson, Legal Director of the Center for Food Safety. “It will help protect the islands from the illegal field-testing of genetically engineered, drug-producing crops.”

Plaintiffs point to a scathing critique of USDA’s regulation of biopharm and other genetically altered crops issued by the agency’s Inspector General in December 2005 as evidence that USDA continues to neglect its regulatory duties. That report documented numerous violations, including USDA’s failure to record locations of field trial sites and conduct required inspections. In two instances, USDA regulators were unaware that a total of more than two tons of harvested biopharm crop material was stored at uninspected facilities for over a year.

Hawai’i is the nation’s leading state for plantings of experimental, genetically engineered crops, having hosted more than 5,000 such tests from 1987 through 2004, including several dozen biopharm crop trials. Biopharm crops produce substances such as experimental vaccines, growth hormones, blood-clotting and –thinning agents, antibodies, and industrial enzymes. Two high-profile contamination incidents in 2002, in which biopharm corn produced by ProdiGene contaminated soybeans and corn in Nebraska and Iowa, provoked widespread criticism of the practice, which nevertheless continues.

Plaintiffs have also challenged USDA’s practice of concealing the locations of trials from the public, and in most cases not disclosing the substances being grown in the plants.

Judge J. Michael Seabright ordered the parties to appear in court on August 22, 2006, to discuss remedies for the government’s violations.

“We will not rest until the federal government prohibits the irresponsible and hazardous field-testing of drug-producing, genetically engineered crops,” said Andrew Kimbrell, executive director of Center for Food Safety.

Read a copy of the court’s ruling (pdf file)

Read the USDA Inspector General’s report (pdf file)

More background on biopharming