United States of America
Wildlife, Standing, Wetlands, Permits, Causation, Jurisdiction, Constitutional, Evidence, Inspections
This lawsuit was challenging the U.S. Fish and Wildlife Service’s (FWS’s) decision to allow biotech corn and soybeans to be farmed on public lands in the Midwest. At issue was FWS’s environmental assessment, which approved planting of glyphosate tolerant corn and soybeans for habitat restoration. A result of FWS’s effort to develop a consistent regional position for farming on public lands, the EA recognized that farming on national refuge lands has long been allowed and considered several alternatives for future farming activities. The alternative ultimately chosen differed from those initially studied, allowing continued farming for multiple objectives, but allowing biotech soybeans and corn only where farming occurs for habitat restoration. The Center for Food Safety and other organizations challenged the decision. The court considered plaintiffs’ assertion that FWS failed to take the “hard look” required by the National Environmental Policy Act at three issues: the increased use of herbicides, the risk of “super weeds” and the risk of transgenic contamination. With respect to impacts of increased herbicide use, the court accepted FWS’s conclusion that glyphosate is relatively benign compared to other herbicides and has a limited tendency to leach. The court also accepted FWS’s determination that its use would be further limited by pesticide application permits and following label instructions would “reduce the risks to wildlife.” With respect to the potential for creation of glyphosate tolerant weeds through consistent use of the herbicide, FWS asserted that requirements for crop rotation and a five-year limit on use of the biotech varieties would minimize the risk that such weeds would develop. The court found that this adequately addressed the issue. Finally, the court found well-supported FWS’s conclusion that transmission of genetic characteristics to nearby non-biotech crops would be limited by a 660-foot buffer between the biotech species and non-biotech crops. As for soybeans, the court agreed with FWS’s claim that the risk of crosspollination is minimized because this crop is “highly self-pollinated with large, heavy seeds that are not easily dispersed.” The court also found that, contrary to the plaintiffs’ assertions, FWS properly considered an appropriate range of alternatives in its EA and reasonably arrived at the selected alternative. Plaintiffs further asserted that FWS violated laws governing the National Wildlife Refuge system when it chose not to make biotech-specific compatibility determinations and instead relied on general farming compatibility determinations. The court agreed with FWS that the law does not require “crop-specific” compatibility determinations and that federal law considers farming activity a compatible use.