Ill Seed, Ill Weed

Ever since Justice Stevens announced his retirement several weeks ago, I have been trying to think of the perfect subject to talk about in this blog — some pivotal case, perhaps, where Stevens wrote the opinion and addressed some scientific issue. There have been several, of course. It is difficult for there not to have been many scientific issues that have come before the court during his 34-year tenure, the third longest in the history of the Supreme Court. There was, perhaps, his majority opinion in Massachusetts v. Environmental Protection Agency, the only Supreme Court case really to address an issue related to global climate change. Or maybe his majority opinion in Reno v. ACLU, the case that held the Communications Decency Act unconstitutional, having a great impact on the content that is available on the Internet. Or I could have written a speculative blog about In re Bilski, the case that is expected any day now to decide once and for all whether business methods are patentable; there is widespread speculation that Stevens will author a unanimous opinion of the court in that case.

But Monday, the court released its ruling in Monsanto Co. v. Geertson Seed Farms, a case that considers deregulation of a genetically engineered variety of alfalfa produced by Monsanto. The case is interesting to me in talking about Justice Stevens for several reasons. First, it is related to an important scientific issue — the release of genetically modified plants into the environment. It is the first time the Supreme Court has considered a controversy over a genetically modified organism. Second, Justice Stevens is highlighted by the case because he was the only one to dissent from the court’s ruling. One is naturally led to the question: Is Stevens simply out of touch with scientific issues or is the court about to lose a lone voice of reason about scientific issues?

“Roundup Ready Alfalfa” has been genetically engineered to be tolerant of glyphosate, which is the active ingredient in the herbicide Roundup. In 2005, the Animal and Plant Health Inspection Service (APHIS) deregulated Roundup Ready Alfalfa and some 220,000 acres were planted in 48 of the U.S. states, forming part of the crops raised by some 3000 farmers. But the deregulation occurred without an Environmental Impact Statement being completed.

The concern is that the introduction of a genetically modified plant into the environment allows the engineered genes to contaminate other plants. In particular, weeds may acquire the gene and also become resistant to Roundup, requiring the use of other, more powerful, herbicides to produce a viable crop. To guard against negative environmental impacts, the National Environmental Policy Act of 1969 (NEPA) requires that agencies prepare a detailed “environmental impact statement” that can be considered by the public. If the agency finds, based on an abbreviated statement called an “environmental assessment” that the proposed action will not have a significant environmental impact, it may take that action without completion of the environmental impact statement.

In 2004, APHIS prepared the abbreviated environmental assessment and received 663 public comments, of which 520 opposed deregulation of Roundup Ready Alfalfa. In addition to concerns about contamination of other plants, concerns were expressed by farmers and scientists that the engineered gene could contaminate nonengineered alfalfa, thereby impacting the export market for alfalfa because of restrictions imposed on the sale of genetically modified food in other countries. Nevertheless, APHIS concluded that there would be no significant impact and proceeded with deregulation.

In 2007, in response to a challenge brought by farmers and environmental groups, the district court determined that APHIS’s reasons for concluding that the risk of genetic contamination was low were “not convincing.” It enjoined further planting of Roundup Ready Alfalfa until the full environmental impact statement could be prepared and evaluated. The injunction was fashioned to take account of the fact that many farmers had already planted the seeds, permitting those who had already done so to harvest, use, and sell the resulting crops and to permit those who had already purchased seeds to proceed with planting.

But the district court rejected APHIS’s proposal to proceed with a partial deregulation in which some Roundup Ready Alfalfa could be planted under conditions that would isolate it from the greater environment at the same time that the detailed environmental impact statement was being prepared. This was the central issue before the Supreme Court — should such a partial deregulation be permitted under those conditions or should there be a complete ban on the planting of Roundup Ready Alfalfa until the full procedure for deregulation has been completed?

Only Justice Stevens sided with the district court, with the other members of the court accepting the partial-deregulation scheme. I admit to some sympathy with Justice Stevens’s position. The Court admits that voluminous evidence was presented both that the risk of gene flow would be insignificant under the proposed partial-deregulation scheme and that suggested the opposite, highlighting the very real disagreement that exists among scientific experts on the issue. The dissent’s view is one that would afford the district court discretion to take the more cautious approach in light of the scientific disagreement.

It seems unlikely that Justice Steven’s dissent in Monsanto will ultimately be viewed as little more than a footnote when historians examine his career on the Supreme Court. He is more likely to be remembered for the opinions he wrote in cases addressing social issues — such as his majority opinion in Wallace v. Jaffree striking down an Alabama statute mandating a minute of silence in public schools “for mediation and prayer” or for his majority opinions in Rasul v. Bush and Hamdan v. Rumsfeld that constrained executive treatment of detainees in the so-called “war on terror.”

But sometimes there is meaty stuff also in the footnotes.

About Patrick Boucher

The author, Patrick M. Boucher, is a patent attorney living near Denver, Colorado and working at Marsh Fischmann & Breyfogle. He holds a Ph.D. in physics as well as a J.D. He is an active member of the American Physical Society, and is admitted to practice law in the states of Colorado and New York, as well as to practice before the U.S. Patent and Trademark Office. He is also a member of the Authors Guild and of the Colorado Authors League.