Recorded: June 2011
Earthjustice staffer Jessica Knoblauch speaks with Earthjustice Managing Attorney Paul Achitoff.
Achitoff is currently challenging the U.S. Department of Agriculture’s decision to allow genetically engineered sugar beets and, more recently, genetically engineered alfalfa, on the market. Genetically engineered crops harm the environment by increasing pesticide use, creating pesticide-resistant superweeds and contaminating conventional and organic crops.
Paul Achitoff: Earthjustice first got involved with genetic modification back around eight or nine years ago when we took on a case against the USDA involving their approval of open-air field trials for crops genetically engineered to produce pharmaceuticals. We brought that case in Hawaiʻi and we eventually established that the USDA had violated NEPA [National Environmental Policy Act] and the Endangered Species Act by approving these field trials without following the procedures of those statutes that are designed to protect human health and the environment.
From there it wasn’t too far to extend that to getting interested in crops that are genetically engineered to be resistant to herbicides, which is what Roundup Ready crops are, which has been the focus of our alfalfa and sugar beet litigation.
Jessica: So Monsanto is the company that’s making these crops, correct?
Paul: Monsanto is the company that develops the crops in their labs and then they license this patented crop to other companies that then grow the crops and distribute the seeds to people.
Jessica: So as you mentioned, you’re currently litigating against them for their genetically modified sugar beet crop and their genetically modified alfalfa crop. Monsanto is one of the largest biotech companies in the world. What kinds of challenges come with litigating against such a company?
Paul: Because Monsanto does have a lot of resources and because they view our lawsuits as a significant threat to their business model, they have devoted a lot of resources to opposing our litigation. They have hired a large law firm, they have spent a great deal of money on expert witnesses, and they are very aggressive in their defense of their business interests, which is to be expected. So the challenges include having to be responsive to a litigation entity that is very aggressive, will file a lot of motions, will file a lot of expert declarations and can do things on short notice. So it keeps us on our toes.
Jessica: I bet! So, sugar beets and alfalfa, they’re obviously not the first crops to be genetically modified. What kind of impact have past GM crops had on the environment and economically speaking as well?
Paul: Using as an example genetically modified cotton, there have been a number of impacts. With cotton, in particular, there has been a proliferation of glyphosate-resistant weeds that have been created in the cotton fields as a result of continually applying a single herbicide to the same field over and over again until weeds evolve resistance to that herbicide. And that’s been particularly prevalent in cotton, but it’s also seen in soybean fields as well, which have been designed for the same purpose of being resistant to the same herbicide. And we would expect that the same thing would occur with any of these crops as long as the farmers continue to rely on a single herbicide through several seasons.
While some farmers do rotate their crops so that they’re not using glyphosate every season, many of them do not follow those practices. And, as a result, it is likely that those types of weeds will evolve. What has happened is that a great deal more Roundup has been put into the environment over the past 10 years, millions of pounds of Roundup that otherwise would not likely have been used. So the amount of herbicide that’s going into the environment, into the soil, into the groundwater has increased significantly as a result of these crops.
Another development is because these weeds do develop resistance to this particular herbicide, growers have begun using other older, more toxic chemicals to try and kill the weeds that are resistant to glyphosate using, for example, Paraquat or 2,4-D, both of which are quite toxic and have a number of environmental and human health impacts.
So essentially the main problem for the public at large is increased chemicals in the environment. Then there’s also the problem for growers of non-genetically engineered crops who don’t want to be growing, buying, selling or eating genetically engineered crops. Whether they’re farmers, merchants, consumers, there is contamination that occurs because you cannot control pollination or seed mixing effectively when you have a crop that’s being grown as widely as these crops are grown. So that has economic impacts on farmers who want to be growing conventional or organic crops that become mixed with the genetically engineered counterpart.
And then you have consumers’ as well as farmers’ choice that’s being adversely affected because there are many people who simply don’t want to be growing or consuming genetically engineered foods. And when they all get mixed together and they’re not labeled, people’s choice to avoid those types of food is taken away.
Jessica: So it sounds like a lot of different issues come up with using these genetically modified crops.
Paul: There are a lot of different issues. There are even other issues. For example, the fact that you have a small number of large corporations that have patented most of the commodity crops that are being grown in the United States today. Virtually all of the soybeans being grown, which is a huge crop in the United States and other countries, most of it is patented by Monsanto or other large corporations. The same is true of corn. The same is true of canola. The same is true now of sugar beets. So essentially what you’re finding is that Monsanto and a few other companies are, to a very significant extent, controlling what people are eating to a degree that I think many consumers don’t realize because they don’t realize how much of the food they eat contains genetically engineered corn, or canola, or soy.
Jessica: Interesting. And so all of these issues that have been raised with previous genetically modified crops, corn, soy, canola, these are the same issues that Earthjustice is arguing will happen with sugar beets and alfalfa, the issue of weed resistance, cross-contamination, increased herbicide use, etc.?
Paul: Yes, that’s right. We have every reason to think that the same problems will continue to occur with this type of crop because the situation really isn’t any different. There aren’t any enforceable controls that are in place to prevent them from happening.
Jessica: Well and that was going to be my next question. Aren’t there any laws to make sure that this type of thing doesn’t happen? Genetically modified foods have been around for quite a while now at this point.
Paul: They’ve been around for roughly 15 years or so. There are laws that the government could use to place some controls on some of these issues. For example, the USDA, if it chose to, could allow these crops to be grown subject to certain conditions that might reduce the likelihood of contamination somewhat. It might reduce the likelihood that weed resistance will evolve and so forth. However, the USDA has not used that authority because it simply is so sympathetic to the interests of Monsanto and the farmers who choose to grow Monsanto’s products that they have a very hands-off approach. Their attitude is, whatever happens, happens, and they’re just not concerned about impacts to the environment or to consumers.
USDA views its responsibilities very narrowly as being responsible to serve the interests or the desires of farmers who want to grow Monsanto’s crops and to serve Monsanto’s business interests. It simply doesn’t care about larger interests of consumer choice, conventional and organic farmer choice, the impact on the environment of increased herbicide use, and so forth.
The USDA frankly doesn’t care, but it’s not as though they couldn’t do anything about it. And then of course they don’t have to allow any of these crops on the market either. And our view is that there are laws that, if enforced, would preclude some or all of these crops from ever getting onto the market. So, there’s that option as well.
Jessica: Essentially Earthjustice is trying to get the USDA to do its job.
Paul: I think that’s a good way of putting it. The USDA has the ability to do things in a much more responsible way, but it chooses not to and we have to ask the courts to get it to follow the law and act more responsibility.
Jessica: So has Monsanto admitted that its products are causing these problems, both the genetically modified seeds and the herbicide Roundup that is applied to these crops?
Paul: They of course have their spin on everything. There is spin on the fact that there is widespread weed resistance that has developed. There are roughly 15 weed species that have been identified as now resistant to glyphosate, for example, and I don’t think there’s much controversy about that. Their spin is that this is not necessarily caused by growing their patented crops, that if farmers adopted various stewardship practices this could largely be prevented. The reality is that farmers do not universally do the things that Monsanto says they could do to prevent some of these things from happening.
So whether it’s theoretically possible isn’t really the point. The point is that as a practical matter, it hasn’t happened and there’s no reason to think that it will happen unless there is some legal requirement that it happen, which thus far hasn’t been the case. They, of course, also don’t take seriously the possibility that there is any environmental downside to anything that they’re doing. And they hire experts who will be happy to swear for a fee that whatever Monsanto’s position is that it’s scientifically supported. Obviously, we disagree.
Jessica: And speaking of things that they’re making that are harming the environment, so this Roundup herbicide mixture contains glyphosate, the active ingredient. That’s being applied essentially to our food, to the crops themselves and then also to the weeds. What’s in this stuff? Is it safe for the environment?
Paul: Well, that’s a complex question. There’s no question that Roundup can harm various aspects of the environment. For example, it is what’s called a broad spectrum herbicide, meaning that unlike some herbicides, which will be effective in killing only certain types of plants, Roundup will kill many different types of plants. So, that would include beneficial plants, endangered plants, as well as whatever weeds a farmer might like to get rid of. Our view is that neither Monsanto nor USDA has taken the required look at the impacts of Roundup use on threatened and endangered species.
Another example would be the fact that Roundup is known to be harmful to aquatic species, in particular fish and amphibians. Well, as many people are now coming to realize, amphibians in particular are undergoing a drastic decline worldwide for a variety of reasons. Pesticides is only one of them. It’s a fact that Roundup, as you point out, includes not only glyphosate but other chemicals that are designed to enhance glyphosate’s effectiveness as an herbicide. Roundup does have toxic effects on aquatic species, including amphibians. And when you’re spraying this chemical on literally millions of acres around the country (and alfalfa for example is grown in all fifty states on some 20 million acres), you are going to be affecting all kinds of species, from plants to fish to amphibians to birds. And there has been no consultation with the Fish and Wildlife Service on the impacts of this, which is quite remarkable given how widespread this activity is going to be. So that’s one of the issues that we’re addressing in our litigation.
Jessica: So that’s one of the things that Earthjustice is asking be looked at, that the USDA actually coordinate with the Fish and Wildlife Service and find out if this actually does have an effect on the environment and on aquatic life?
Paul: Yes. It’s already known scientifically that Roundup does have a toxic effect. There’s no question that Roundup in water will kill amphibians, that Roundup on plants will kill them. The issues of how much and under what circumstances and whether the impacts can somehow be reduced through various requirements, all of this is legally required to be worked out through consultation with the Fish and Wildlife Service. And that’s a step that Monsanto and the USDA have side-stepped in trying to get their products on the market.
Jessica: Okay. So let’s talk about sugar beets. In late 2010, Earthjustice was successful in getting a judge to order the first ever destruction of a genetically modified crop, GM sugar beets. What were the reasons that the judge gave for making this decision?
Paul: Well, we have to step back a couple of steps. Before that happened, we had sued the USDA in the beginning of 2008, arguing that the USDA had violated the National Environmental Policy Act by failing to do an environmental impact statement (EIS) before allowing these sugar beets to be commercialized. The judge ultimately agreed with us and ordered them to do an EIS. We then got involved in litigation over whether or not the sugar beet crop could be grown while the agency is preparing the EIS, which it plans to complete next year. Ultimately, the judge decided that he was going to vacate or throw out the agency’s decision to allow this crop to be planted while the EIS is being prepared.
Following that decision, the government very quickly thereafter issued permits allowing the next crop of Roundup Ready sugar beet seed to be planted, which we believed was unlawful. And we went back to court and the judge agreed with us that it did violate the law. We asked the judge to order that this crop essentially be destroyed and he agreed. Now the government and Monsanto appealed that decision to the 9th Circuit Court of Appeals, which reversed. And so as a result the crop was not destroyed and is still growing today.
Jessica: So what is the current plan of action for Earthjustice on this issue?
Paul: With respect to sugar beets, we have a lawsuit that is currently pending in the District of Columbia in federal court in which we are asking the court to decide that the government’s recent decision to allow continued growing of the genetically engineered sugar beets while the government is preparing an environmental impact statement are unlawful and should be set aside, such that the crop is not grown while the EIS is being prepared. That is the whole purpose of doing an environmental impact statement is to determine the environmental impacts and human health impacts and socioeconomic impacts of an agency decision before the decision occurs, not after it occurs and has become entrenched, which is what the government and industry are trying to bring about. So that’s what at issue in that case.
Jessica: And even if the EIS comes back and it’s not sufficient, then Monsanto and the USDA by that point have a strong argument that they’ve already planted the crops and are going to lose all of this money and farmers are going to lose all this money if we don’t just allow this to continue to happen. Is that the strategy they’re thinking?
Paul: That’s exactly the strategy that they’ve employed from day one beginning over three years ago. Every time we have been at a stage in the litigation where we have argued for relief, their response has been, “But this will cost farmers’ money because it’s either already been planted in the ground” or “We don’t have the conventional beet seed to replace the genetically engineered crops” or something similar to that. So that’s an ongoing argument and we just have to deal with it.
Jessica: You mentioned conventional sugar beet seed. That’s definitely something I’ve seen in the news, that if we don’t have these genetically modified sugar beets, which is a main source of our sugar in the U.S., then we’re going to have a sugar shortage. Is there something to that argument?
Paul: Well about half of our sugar domestically is from sugar beets, the other half is from sugar cane. Yes, there have been those stories that have been circulated about drastic shortages of sugar and higher prices. I’m familiar with how those analyses were done and what they are and are not based on. My view is that they are greatly exaggerated and were generated primarily to scare both the judge and the public into imagining that we somehow need the genetically engineered sugar beets or else people are going to be paying $50 for a can of coke. I don’t think that it’s accurate. There is lots of sugar in the world, both domestically and internationally. Really, what’s going on is trying to maximize the profits of the sugar beet processors that are involved in the litigation. It has nothing to do with actually trying to keep prices low for consumers. I think that those are just scare tactics.
Jessica: A few weeks back, the USDA announced that it will allow the GMO industry to conduct its own environmental impact studies or pay researchers to do these studies for them. Given Monsanto’s history of creating products that have been proven to harm both people and the environment, such as PCBs and chemicals that used in Agent Orange, do you feel like this is the best decision in terms of protecting public health and safety?
Paul: Clearly, I don’t think it’s the best decision, but I would also say that it isn’t dramatically different from the way that this has been happening anyway for some time. If you look, for example, at the environmental impact statement that the USDA produced last December for genetically engineered alfalfa, it’s a lengthy document of several hundred pages and then hundreds more pages of appendices and so forth. Much of the analyses relies primarily upon studies and reports and analyses that were done by Monsanto. The government simply points to them and says, “Well, Monsanto says that this is safe, so it must be.”
This is not that unusual, particularly for this agency. Now, many government agencies do rely on studies and analyses from contractors as well as data that they receive from companies that may profit from their decision one way or the other. With this particular agency, their reliance on Monsanto’s data and analyses has been particularly great for quite a while. Unfortunately I don’t think that making the policy more explicit, that Monsanto is going to be writing these things, will be that dramatic of a change.
Jessica: Part of the problem also is that Monsanto doesn’t allow outside researchers to do any research on their products. They claim that these are chemical secrets and they can’t give up that information, so any tests that have been done are either done by Monsanto or approved by Monsanto. Is that a pretty fair assessment?
Paul: Monsanto and other companies like Syngenta and so forth who also do genetic engineering were very heavily criticized by scientists for inhibiting independent research into their patented products. In response to that criticism, they have developed agreements that they require researchers to sign that allow them access to the patented seeds for research purposes, but also place greater controls on their ability to use the results of their research and to publish that research than would typically apply to an independent scientist. So, you can get access but you also have Monsanto and Monsanto’s handpicked scientists looking over your shoulder, critiquing what you do, and so forth. So it does inhibit the science to some extent.
Jessica: Currently, biotech companies like Monsanto have created genetically modified corn, soybeans, canola. Now they’re looking at sugar beets and alfalfa, which make up a large part of our food supply. If genetically modified sugar beets are allowed on the market, how will this further impact a consumer’s ability to have a choice between foods that are genetically modified and not genetically modified?
Paul: The short answer is that the best and one of the only ways that a consumer can avoid genetically modified foods today is by buying certified organic products and also by eating less processed food and eating more fresh food. If you go to the fresh fruit and vegetable aisles of supermarkets, most of what you’re seeing there is not genetically modified. The corn may be, but for the most part if you buy a watermelon or a butternut squash it’s not going to be genetically modified because no one has genetically modified it yet. And if you buy a packaged good that says it’s certified organic, then that also is not going to contain genetically modified ingredients because GMOs are not allowed in certified organic foods.
But if you simply buy a box of breakfast cereal or energy bars or ice cream, chances are very, very good that it does contain one or more genetically engineered ingredients. For example, if it’s got high fructose corn syrup in it, which so many foods do, there’s a very good chance, in fact it’s a near certainty, that it comes from genetically engineered corn. Soy is used in a multitude of products, and so if it isn’t labeled organic then chances are it contains at least those genetically modified ingredients.
It’s been estimated that somewhere between 70 and 80 percent of all of the packaged foods in the supermarket contain one or more genetically modified ingredients. So people are eating them every day without knowing it and because there is no requirement that genetically modified ingredients be labeled as such people have no way to know what they’re eating unless they buy organic foods.
Jessica: Interesting. Seventy percent of all processed foods have genetically modified ingredients. I would assume that most consumers aren’t aware that much of their food is genetically modified.
Paul: I can only assume that those people are unaware of it. I don’t really know. I do know that polls have very consistently shown that a very large majority of people don’t want to be purchasing genetically engineered products and would prefer that they be labeled. The reason that they are not labeled is simply because companies like Monsanto invest a great deal of energy and money in opposing any legislation that seeks to require labeling of genetically engineered ingredients because they know that if people look at a package and it says that it contains genetically engineered soy, for example, that many people simply won’t buy it. So part of the whole business strategy of the industry is to deprive consumers of the information that they would need in order to make informed choices about what they buy and what they eat.
Jessica: So it sounds like in addition to GM foods being an environmental, health and safety issue, it’s also an environmental justice issue because you’re almost forcing this product on people if you’re not letting them know what they’re eating.
Paul: I look at it that way. I think that it’s extremely unfair to people to be forced to eat things simply because there are no requirements for labeling them. Anyone who is listening to this or reading this can know that they are eating genetically engineered products every day unless they are eating only organic food or only eating fresh produce, which few people do. I would hope that people would be indignant about that because I think that nobody really wants Monsanto controlling their diet. But that is in fact what’s happening. The sugar beets are on the market right now and the sugar from them is refined and sold in bulk and goes into so many different foods. Unless the labels says cane sugar, which is not genetically modified at this point in time, if it just says sugar, or if there is no label or you’re at a restaurant, you can be sure you’re eating it.
Jessica: So the genetically modified sugar beets are already in the food supply then?
Despite growing concerns of genetically engineered crops, government officials continue to rubber stamp their approval. In early 2011, the USDA announced the approval of Monsanto's genetically engineered Roundup Ready alfalfa. Learn about Earthjustice's litigation challenging the USDA for failing to properly assess the environmental impacts of Monsanto’s GE Roundup Ready sugar beets and alfalfa: GMOs: Engineering an Environmental Disaster