Environmentalists notch win in GMO rulemaking case

SAN FRANCISCO (CN) — A federal judge has granted summary judgment in a case about genetically engineered organisms, giving environmental groups a win in a yearslong legal battle over national agricultural regulations.

The suit, filed in the Northern District of California by the National Family Farm Coalition and environmental groups, stemmed from what they called arbitrary and capricious rules governing genetically engineered crop regulations.

The plaintiffs argued the U.S. Department of Agriculture had regulated these crops for 25 years. However, a rule change in 2019 effectively removed department oversight and approval of open-air experiments and commercial sale and planting. Removing final agency approval under the Administrative Procedure Act meant there would be no analysis under the National Environmental Policy Act or Endangered Species Act about the crops’ agricultural or environmental risks.

That move, in effect, handed constitutional duties to genetically engineered crop developers, violating the Plant Protection Act, 2008 Farm Bill and a handful of other laws, the plaintiffs claimed when they sued in 2021.

“Alternatively and at a minimum, it was contrary to sound science for the agency to completely exempt many future [genetically engineered] crops and [genetically engineered] crop experiments from any oversight,” the plaintiffs said in their suit.

On Monday, U.S. District Court Judge James Donato granted summary judgment, vacating the final rule and remanding the issue to the Animal and Plant Health Inspection Service — a division of the USDA — for reconsideration consistent with his order.

The rulemaking process that ultimately led to the suit began in 2004, when the animal and plant service said it planned to have public comment about changing the rules. That included expanding the regulatory scope to include genetically engineered organisms that could pose a noxious weed risk.

Ultimately, in 2008 the service said it needed to regulate both noxious weeds and plant pests to best evaluate risks around genetically engineered organisms.

A deluge of public comments led to a delay, with the service in 2017 proposing a rule that would evaluate genetically engineered plants for noxious-weed risk.

“[The service] stated that the ‘current regulatory structure, which entails evaluating such plants solely for plant pest risk, is not sufficient to properly identify all risks that these plants present to other plants and plant products,’” Donato wrote.

Little occurred in the rulemaking process until 2019, when the service floated a third proposal. It’s that proposal that appeared to veer away from the service’s prior statements about regulations and led the plaintiffs to claim the service had abandoned its regulatory authority to private parties without congressional approval.

Donato found the final rule failed to take into account issues that the service itself had previously identified, like when a genetically engineered organism would fall under certain regulations.

Agencies must provide a basis for their decisions, he wrote.

“[The service] says that it was not required to stay true to the ‘very genesis of the rulemaking history’ in promulgating the final rule and that the final rule need only have been a ‘logical outgrowth’ of the [notice of proposed rulemaking] with a reasonable explanation,” Donato wrote. “That may be, but those comments do not excuse it from complying with the [Administrative Procedure Act’s] basic requirement that agencies articulate the bases of their decisions.”

Donato added that, typically, a regulation that isn’t compliant with the Administrative Procedure Act is invalid. However, a judge can leave it intact when equity demands it. That means balancing the significance of an agency’s error against the consequences of an interim change that itself could be changed.

The judge added that equity demanded vacating the final rule, returning the the regulations to the status quo.

The National Family Farm Coalition couldn’t be reached for comment. The USDA referred comment to the U.S. Department of Justice, which couldn’t be reached by press time.