How Congress let Monsanto off the hook

vilsackNot many people like the messes Congress makes but everybody should see how they’re made.

This article takes a close look at the legislation just passed by Congress and signed by President Obama allowing the Secretary of Agriculture to issue executive orders that bypass regulations, safety, and science for the purpose of speeding genetically modified organisms (GMOs) and genetically engineered seeds (GE) and crops to market.  The way the law is written, Secretary Tom Vilsack can lift restrictions on GMOs for a set period and, it appears, do so without hindrance from the courts.

Are genetically modified organisms (GMOs), seeds, and crops  safe for human consumption?  How has the scientific testing of these seeds been conducted and what are the results?  Is there undue influence of the government and legislative process to fast track the delivery of GMOs to market?  Who benefits from that influence, if it is present, and how are the benefits derived?

There is a claimed scientific consensus that GMOs are safe for food production but there are detractors and the general public is wary.  Most of us have or are eating food from genetically engineered seeds and crops.  In the U.S., 88% of the maize and soybeans are from genetically modified seeds.  These seeds are called “green seeds” to ride the environmental band wagon.  They’ll solve world hunger too, according to some biotech advocates.  A review of studies on crop yields, however, shows that the impact of GMO’s the actual yield of crops is not significant.

There can be little doubt that the legislation neuters the principles of open law making and government and scientific requirements for distribution of GMOs and GE seeds and crops, legislation tucked away in the budget act just passed.

There is no doubt that a leader in corporate food technology, Monsanto, is well represented in the Obama administration.  In 2010, the president appointed Mark Taylor, former Monsanto Vice President and lobbyist, as the Food and Drug Administration’s food safety division.  That’s real influence.

The beneficiaries of this legislation are clear.  Whenever they come up with a very special Franken-gene, Monsanto, Lilly, etc., are off the hook and ready to roll without obstacles.  They just need a special order rubber stamped document  from the Secretary of Agriculture.  If he’s too busy, they’ll write it for him.

The following analysis of the specific legislation is important.  A review of the actual language shows how the turn of a phrase in a back room can make the U.S. government a partner in the furtherance of GMOs or any other product or service from an industry or group with the money and power to get things done.

The passage below is from the March 20, 2013 budget bill, the focus of controversy.  If you read the language marked in bold print as one statement, you get a sentence (of sorts) that says the Secretary of Agriculture “shall” issue regulations to override impediments (e.g., court rulings) to the distribution and marketing of GMO’s and genetically engineered crops.  The details of the linguistic slight of hand are explained after the passage.

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In the Senate of the United States,

March 20, 2013.

Resolved, That the bill from the House of Representatives (H.R. 933) entitled ‘‘An Act making appropriations for the Department of Defense, the Department of Veterans Affairs, and other departments and agencies for the fiscal year ending September 30, 2013, and for other purposes.’’, do pass with the following

AMENDMENTS:

Strike all after the enacting clause, and insert in lieu thereof:

SHORT TITLE  SECTION 1. This Act may be cited as the ‘‘Consolidated and Further Continuing Appropriations Act, 2013’’.

Link:  http://docs.house.gov/billsthisweek/20130318/BILLS-113hr933eas.pdf

8 SEC. 735.
In the event that a determination of non-regulated status made pursuant to section 411 of the Plant Protection Act is or has been invalidated or vacated, the Secretary of Agriculture shall, notwithstanding any other provision of law, upon request by a farmer, grower, farm operator, or producer, immediately grant temporary permit(s) or temporary deregulation in part, subject to necessary and appropriate conditions consistent with section 411(a) or 412(c) of the Plant Protection Act, which interim conditions shall authorize the movement, introduction, continued cultivation, commercialization and other specifically enumerated activities and requirements, including measures designed to mitigate or minimize potential adverse environmental effects, if any, relevant to the Secretary’s evaluation of the petition for non-regulated status, while ensuring that growers or other users are able to move, plant, cultivate, introduce into commerce and carry out other authorized activities in a timely manner: Provided, That all such conditions shall be applicable only for the interim period necessary for the Secretary to complete any required analyses or consultations related to the petition for non-regulated status: Provided further, That nothing in this section shall be construed as limiting the Secretary’s authority under section 411, 412 and 414 of the Plant Protection Act.  Pages 78, 79

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TRANSLATION:  If the Secretary of Agriculture has lifted regulations on “measures designed to mitigate or minimize potential adverse environmental effects” (genetically modified seeds/organisms – GMO) and those have been struck down (“invalidated or vacated” likely by a court due to public hazard, safety issues, etc.) the Secretary shall (not may, can, or should) immediately deregulate and allow use of GMOs.  This will be consistent with 411(a) and 412 (c) of the Plant Protection Act below.  Section 412 (b), scientific justification made transparent, is not required as part of the deregulation.  This is a temporary mandate (“shall”) for the Secretary.  It has to be temporary since Congress and the president cant’ get away with permanently barring court action to protect the public or permanently denying scientific input.

The phrase “measures designated to mitigate of minimize potential adverse environmental effects” is, it seems, tied to the term “biological control mechanisms” in the Plant Protection Act below.  This link is to a USDA decision to approve a Monsanto “biological control mechanisms” – genetically engineered corn.  (USDA approval of Monsanto corn: http://www.aphis.usda.gov/brs/aphisdocs/04_12501p_pea.pdf)

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REFERENCED REGULATIONS ABOVE “411 (a) and 412 (c)”:  These sections of the Plant Protection Act are referenced in the amendment on the Secretary’s powers.  Section 411 (a) specifies who can import “any plant pest” unless authorized to do so “in accordance with” regulations.  But the first phrase, “Except s provided i subsection (c)” [411] lets the Secretary off the hook for any existing regulations by granting him the power to simply declare an exception and allow “any plant pest” in the country.  The legislation just passed takes science out of the equation as indicated by the exclusion of section 412 (b) concerning scientific input.   Note that subsection (b) requires  that regulations are “based on sound science and are transparent and accessible.”  The Secretary of Agriculture “shall”, by the new law just passed, abrogate the scientific requirement tied to regulation in this instance.

411. <<NOTE: 7 USC 7711.>> REGULATION OF MOVEMENT OF PLANT PESTS.

(a) Prohibition of Unauthorized Movement of Plant Pests.–Except as  provided in subsection (c), no person shall import, enter, export, or  move in interstate commerce any plant pest, unless the importation,  entry, exportation, or movement is authorized under general or specific  permit and is in accordance with such regulations as the Secretary may  issue to prevent the introduction of plant pests into the United States or the dissemination of plant pests within the United States.[Referenced in Senate bill]

(c) Authorization of Movement of Plant Pests by Regulation.–(1) Exception to permit requirement.–The Secretary may issue regulations to allow the importation, entry, exportation, or movement in interstate commerce of specified plant. [Added 3/29]

SEC. 412. [(a) and (c)] <<NOTE: 7 USC 7712.>> REGULATION OF MOVEMENT OF PLANTS, PLANT PRODUCTS, BIOLOGICAL CONTROL ORGANISMS, NOXIOUS WEEDS,ARTICLES, AND MEANS OF CONVEYANCE.

Link:  http://www.gpo.gov/fdsys/pkg/PLAW-106publ224/html/PLAW-106publ224.htm

    (a) In General.–The Secretary may prohibit or restrict the  importation, entry, exportation, or movement in interstate commerce of  any plant, plant product, biological control organism noxious weed,  article, or means of conveyance, if the Secretary determines that the prohibition or restriction is necessary to prevent the introduction into  the United States or the dissemination of a plant pest or noxious weed  within the United States.

  (b) Policy.–The Secretary shall ensure that processes used in  developing regulations under this section governing consideration of import requests are based on sound science and are transparent and accessible.

  (c) Regulations.–The Secretary may issue regulations to implement  subsection (a), including regulations requiring that any plant, plant  product, biological control organism, noxious weed, article, or means of  conveyance imported, entered, to be exported, or moved in interstate commerce–[Referenced in Senate bill]

 What are they up to?

They’re doing this because they can and because the move benefits the huge  biotech agribusiness companies.  However, it looks a lot like they want to do this soon; when there’s a need to bypass regulation.  Why would they want to do that now or the near future?  Maybe there’s some hot product the corporate food industry wants to get to market in a hurry, so important they cant fool around with courts and studies of scientific safety.

There is too much exposure and bad publicity associated with this to make the move a typical example of legislative dominance.  There’s something up.  We’ll find out soon enough given the ubiquitous presence of corn and soy throughout the manufactured foods we eat everyday.

END

This article may be reposted with attribution of authorship and a link to this article.

Edited 3/29

 

60 comments to How Congress let Monsanto off the hook

  • Jillian

    Eek. Yet one more thing Congress is doing that put the corporations’ welfare far above the people’s.

    The issue with gmo’s isn’t limited to exposure to the plants themselves; it’s also exposure to Round-Up, a pesticide so toxic that the only plants that can live with it are gmos that are designed for it. See http://www.organicconsumers.org/monsanto/roundup.cfm

    • Celsius 233

      Yes; those “chickens” are already coming home to roost. We’re well on the road to our own demise…

    • JustPlainDave

      Roundup is a herbicide, not a pesticide. And it’s not so toxic that “the only plants that can live with it are GMOs”. Although it’s quite broad spectrum, there are some plant species that are more resistant that others – one of the challenges that we’re seeing is that some weed species are starting to evolve resistance to it. We’ve used Roundup since the 70s – it’s not some super chem weapon. It has achieved its notoriety because of its association with GMOs designed to be resistant, not because of the inherent chemistry of the compound or its environmental effects. Those are generally minor, though some caution should be used in particular soil chemistries and climates.

      • Celsius 233

        Interesting you hop in on the side of “roundup” isn’t so bad.
        You only surprise me when you don’t; which, on occasion, you don’t. Interesting…
        That’s hardly the point, though. The GMO affects more than weeds; it’s the insects feeding off of the pollen produced by these GMO crops that’s a possible detriment.
        Monarch butterflies are already in a sudden decline; and it appears GMO may be the main reason.

      • nymole

        The verdict is not yet decisively in for long term effects of glyphosate :Its notoriety is not just confined to GMOs and plastics, it’s been used “since the ’70’s” -does not prohibit any endocrine -disrupting properties from having a long term effect on (gasp) animals (not talking about drinking it!)

        One group of scientists produced an ” it’s fine for you study” see: (2000)
        Safety evaluation and risk assessment of the herbicide Roundup and its active ingredient, glyphosate, for humans.

        A paper with a much different POV (2012)
        A glyphosate-based herbicide induces necrosis and apoptosis in mature rat testicular cells in vitro, and testosterone decrease at lower levels.)

        • JustPlainDave

          The relevant issue for me is where it ranks in the veritable panoply of agricultural chemicals out there. There’s an awful lot more nasty shit than Roundup that we use on a regular basis. Over the years we had a number of family friends seriously injured or killed in chem accidents. Many, many more in conventional accidents.

          Being the first non-farmer from a family that’s farmed successfully since 1820, me, I have a bit of a different perspective and I’m not greatly swayed by what the “civilian” public decides to become concerned about in any given year – they really don’t know a great deal about our industry, or the long term risks others have assumed so they can be fed cheaply. Intelligent critique of agricultural chem use is and has been immensely useful (the way that people use them now because of that is light years from when I was younger), but that critique needs to accept that tradeoffs are necessary.

      • JustPlainDave

        Well, it just might have something to do with having actually used Roundup over a long period – and having a memory long enough to remember how the “controversy” around it came to be… There’s an awful lot about modern industrial farming to be concerned about – that folks fixate on something like Roundup is frankly a huge wasted opportunity.

        • My father did a lot of business with “ranchers” as they were called out west. They were the predecessors of the corporate farms of today. I was around enough of them to get a picture of a highly independent, determined breed of farmers. As I’ve read about Monsanto’s overseas programs, I wonder how those folks would have responded to being told all the restrictions on seed. You get new seeds every year. You can’t keep any leftovers for next year. Buy them from us or a few others just like us. I can’t see a favorable reaction.

          • JustPlainDave

            The vast majority of what is popularly thought of as the corporate farms of today are actually large family farms. Non-family farms account for only two percent of the number of farms (and 18% of total agricultural production). Large and very large family farms, by way of comparison, account for 9% of total farms and 66% of the value of production. When people zero in on corporate farms in political discourse, I grab my wallet – what that really seems to mean is they want to talk about farming practices that they find objectionable, but need a handy target to hang them on (the family farm being apparently something of a sacred cow [no pun intended]).

            As to what those folks would have thought, well, based on what I’ve seen, they and their kids are still around (i.e., they haven’t been replaced by that handy lightning rod, the “corporate” farm) – and the kids are running ever larger and more sophisticated [and more profitable] operations. Notably those operations don’t seem to be shying away from Roundup ready crops. Now, I don’t think that anyone down on the farm loves Monsanto (or implement dealers, or bankers, or politicians, or commodity traders, or indeed any of a long list of parties that likely includes most city folk when they nose on in), but they do seem to see a role for those crops and the things that go with them. Me, I’m pretty agnostic, but that’s what it looks like to me when I go back home to the farm.

  • Thomas Lord

    Michael’s legal analysis is false when it asserts that 412(b), which requires a transparent scientific basis for certain regulations, is rendered inoperative for these permits. Rendering it as struck is grossly misleading.

    Here is how these laws are structured:

    412(a) and 412(c) set out a scope for the kinds of regulations the secretary may develop at his discretion.

    412(b) conditions the secretary’s discretion, requiring that the regulations be developed in a transparent, science-based way.

    8 Sec 735 references that regulatory scope to make clear that it is those 412(a) and (c) regulations that determine what kinds of conditions may be attached to those temporary permits.

    The conditions on the permits must be “necessary and appropriate” as consistent with the 412(a) and (c) regulations. The importance of this is to say that the conditions can not go beyond the purposes of the regulations developed under 412(a) and (c). The Secretary could not add a condition that says “As a condition of this permit you must also wash the motor pool cars for the Secretary’s office every Saturday.”

    Those 412(a) and (c) regulations must be developed as specified by 412(b). Nothing here changed that.

    When Michael wrote:

    Section 411 (b), scientific justification made transparent, is not required as part of the deregulation.

    That is simply false.

    • hvd

      Too bad you don’t know how to read. 412(b) explicitly is not included in the criteria to be applied by the Secretary. Part of the reason is that paragraph only applies to imports. Paragraphs (a) and (c) both apply to regulating interstate commerce as well as imports. Monsanto is located where?

      The points you raise in your entry immediately below, are also plainly wrong. The process works as follows: Secretary grants non-regulated status, courts strike it requiring regulation, Secretary must now, albeit temporarily, permit or deregulate. In other words the Secretary in the first place determined that based on facts submitted product should be deregulated, court determines on the same facts (review is on record below) that secretary was wrong, Secretary must repermit under new law. At any rate Secretary is not likely to decide that first determination was wrong, hit his forehead and say “Doh”.

      As to burden of proof – there are no hearings required so there is no burden of proof. What will happen, of course, is that Secretary will determine that temporary period be made permanent based on facts that he seems to be able to accumulate with or without a hearing, protesters bring matter to court and process starts all over again.

      • Thomas Lord

        hvd, are you one of the people who is trying to resurrect this site? Because this doesn’t help:

        Too bad you don’t know how to read.

        As for “how to read”:

        412(b) explicitly is not included in the criteria to be applied by the Secretary.

        It does not have to be included. The words of 412(c) have to be interpreted in the totality of their context. 8 sec 735 does not rip them from their context. If 8 sec 735 had wanted to have something like 412(c) but severed from (among other things) 412(b) it would do that by cutting and pasting, not by cross reference.

        Also, among other things, you ought to note that 8 Sec 735 explicitly makes clear that it does not in any way diminish the Secretaries full section 412 powers.

        I did, though, make a mistake. I repeated one of Michael’s mistakes that I didn’t notice at first. My bad.

        So here is another thing that Michael got wrong:

        Michael’s highlighting and analysis explicitly assume that 8 Sec 735 referenced 412(a). It did not.

        Look again at the passage he quoted. It references 411(a).

        It could be interesting to have a discussion about the basics of statutory construction but, for me, you foreclosed that with your swipe against my literacy.

        As for your scenario:

        Secretary grants non-regulated status, courts strike it requiring regulation, Secretary must now, albeit temporarily, permit or deregulate.

        And that “permit” option is conditioned with a temporal restriction and by accompanying mediating conditions on the permit.

        As to burden of proof – there are no hearings required so there is no burden of proof. What will happen, of course, is that Secretary will determine that temporary period be made permanent based on facts that he seems to be able to accumulate with or without a hearing, protesters bring matter to court and process starts all over again.

        The process does not “start all over again”. There’s an established adjudicated record behind it with which to challenge the permit or its particular mediating conditions. It could even be done within the context of the same case and on an expedited basis, if the problem arising is as egregious as you suggest in a particular case.

        • hvd

          First, let me apologize for the ad hominem. My initial biases were showing and that is wrong. Second, I still think that you are misreading the statute with regard to the exclusion of (b) which only relates to imports. I also think you are wrong about how this whole thing proceeds. However, I think there are problems beyond what you are suggesting and what I think you are wrong about.

          735 references both 411 and 412 but only deals with “determinations of non-regulated status made pursuant to Section 411″. Not 412. 411 deals only with transport of plant pests, 412 deals only with transport of plants except that both 412(a) and 412(c) refer to “biological control organism” which is probably intended as another way of saying pest. Even so the reference to 412 (c) would appear to be a typo as 411(c) provides for determination of non-regulated status under 411. To this extent 735 doesn’t actually seem to have anything to do with plants but only seems to deal with pests. In which case it has nothing to do with Monsanto unless, of course, they also produce plant pests. Unless they only meant to reference 412. But then this is Congress and they really don’t seem to know what they mean most of the time.

          • hvd

            I should have probably added that despite your inability to read you seem to be correct in your main point.

          • Thomas Lord

            Apology accepted.

            On the issue of 412(b)’s restriction to regulations that pertain to “import requests” — that’s good spotting and reasoning but I think you need to look at the particulars of subject domain:

            A domestically developed GMO crop being introduced to the market could be considered, in the terms of the statute, an “entry” into the market rather than an “import”. (See the enumeration at 412(a) and the definitions at 403.)

            Can you identify a relevant, realistic, hypothetical case of a 412(c) regulation that would apply to an entry request but not an import request?

            In other words, isn’t every regulation that pertains to “entry” of a domestically developed GMO crop also be applicable to “import requests”, at least insofar as those import requests would effect “entry”?

            The converse is not true. It is easy to imagine import regulations that are not applicable as regulations against entry.

          • Thomas Lord

            This is cool too, I just noticed:

            Check out the part of the definitions at 403, item (9), particularly (9)(E) and (9)(F).

            “movement” includes releasing an organism into the environment or allowing such a release to occur.

            “movement” into the territory of the United States is within the statute’s definition of “import”.

            So allowing entry of a domestic GMO crop under ordinary conditions, which are or certainly allow release into the environment — counts as an “import”.

          • dk

            Unless I’m reading this wrong, GMO’s fall under the title “plant pests”. I haven’t finished reading it, but it seems this decision may have played a part in the legislation.

            http://www.supremecourt.gov/opinions/09pdf/09-475.pdf

    • Thomas, Thanks for pointing out my vision problem on 411. I incorporated that into the piece just now and, I have to say, it makes the entire process smell even worse than it did.

      Of course, the main point of the argicle was the deceptive way this was handled, a point that you seemed to agree with down the thread. You also mentioned that more research needs to be done on GMOs, GE, etc. That makes the point I was making – they shouldn’t do backroom deals when they don’t have the data.

      I will respond more to the points you made when I’m free in about two hours.

      I must note that you said, “Michael’s legal analysis is faise.”That term means “adjusted or made so as to deceive.” You either don’t now what the term means or you think that you can accuse people at The Agonist of deception (even in French) and have that pass unnoticed. It didn’t. You should accept the policy of giving people, me and any other poster her, the benefit of the doubt for engaging in an honest dialog. It promotes a civil dialog. I hope that you understand that point clearly.

      • Thomas Lord

        “False” has several common meanings including, simply, “not true”.

        • That’s a fact based statement and doesn’t respond to my comment on your presumed use of the term, which you choose not to clarify.

          Which use did you intend? (Webster):

          FAISE:
          1: not genuine (false documents) (false teeth)
          2a : intentionally untrue (false testimony)
          b : adjusted or made so as to deceive (false scales) (a trunk with a false bottom)
          c : intended or tending to mislead (a false promise)
          3: not true (false concepts)
          4a : not faithful or loyal : treacherous (a false friend)
          b : lacking naturalness or sincerity (false sympathy)
          (4 more at the link)

          • Thomas Lord

            I mean something like how a wheel can be true or the start of a race can be false. Or how a mathematical argument can be true or false.

            I think you are concerned that I might have accused you of being dishonest with your original post. I did not.

            • You knew I was concerned from the start when I pointed it out. After the exchange, your comment “I did not” is not even a backhanded effort to apologize for the original offense.

    • HR 933 8 SEC. 735 begins with the reversal of deregulation by the Secretary of Agriculture (presumably by a court action). You must start with that statement in mind. It is the scenario that the language addresses.
      It says, “In the event of a determination of non-regulated status made pursuant to section 411 of the Plant Protection Act…”

      The reguations have been altered or abandoned. The phrase, “immediately grant temporary permit(s) or temporary deregulation in part, subject to necessary and appropriate conditions consistent with section 411(a) or 412(c) of the Plant Protection Act,” does not mean regulations stay in place. First, the secretary has already determined that deregulation is called for and made that change, only to be impeded by the courts. But look at 411 (a) and 412 (c). 411 (a) begins with “Except as provided in subsection (c),” and then prohibits certain types of transport of pests . Go to 411 (c) and it’s only about waiving regulations. “Exception to permit reqirement. The secretary may allow…”

      So, we know that the 933 language provides the secretary a means of preserving deregulation against a court requiring reregulation and that 933 points to 411 (a) reglations and the “exception” as outlined in 411 (c) “to allow the importation” of certain plants.

      933’s reference to 412 (c) is no way iplies regulations that were in place since the whole purpose of the language is to butress dereglation. For this to apply, the secretary has already deregulated and been challenged. The 933 language allows the secretary to return to that course – deregulation.

      As for the statement about science being out the window, it couldn’t be clearer. 933 describes how deregulation will proceed. It mentions specific sections and subsections that are required for that process. There is no mention or, I should say, there is a specfic exclusion of 412(b)-“sound science”-from this process.

      This was speciically crafted to let the secretary move any GM0/GE plants, substances into the market without scientific considerations and over the rulings of courts. It’s a new low, even for the Republican dominated House and the anti-environment White House.

      • Thomas Lord

        Omitting some details, I think your argument here is schematically, roughly this:

        Let’s say that the Secretary has fully deregulated some plant (for a hypothetical, the GMO crop “fooberry-plus”).

        The deregulation is successfully challenged in court. For our hypothetical, let’s say that the EIR prepared for the fooberry-plus was somehow defective.

        For our hypothetical, let’s say that the challenge was brought to court by organic fooberry growers. The controversy before the court is their claim that they will be injured by genetic transfer — their own fooberry crops risk contamination with fooberry-plus genes.

        So the court not only voids the full deregulation of fooberry-plus but issues an injunction against permitting planting that present a substantial risk of cross-contaminating organic fooberry fields.

        You might wish instead that the court would give a broader injunction: no planting of fooberry-plus at all and if you’ve got any, tear it up. SCOTUS has already found that that exceeds the powers of the courts. SCOTUS has already found that the Secretary can partially deregulate in a case like this.

        Now farmer Joe is nowhere near any organic fooberry fields and there is a large buffer between his proposed fooberry-plus field and the wild. 735 describes a process by which the Secretary can partially deregulate by giving Joe a permit to plant in that isolated field.

        On the other hand farmer Jane is right next to an organic fooberry field. When she seeks a permit to freely plant fooberry-plus at the property line the Secretary may and should deny that permit. If the Secretery errs and does not, the organic growers can challenge the permit in court pointing to the non-overreaching injunction.

        All of this was already possible before the new provision in law. The difference is that without this provision the Secretary would “partially deregulate” for Joe in an ad hoc way, relying solely on the early decision from SCOTUS. After this new provision, the way this partial deregulation occurs is legislatively circumscribed.

        This was speciically crafted to let the secretary move any GM0/GE plants, substances into the market without scientific considerations and over the rulings of courts.

        It wasn’t and it doesn’t have that effect.

  • Thomas Lord

    Michael didn’t highlight it but to me, in light of the proponents claims about this law, this bit is very interesting (from 8 Sec 735):

    Provided, That all such conditions shall be applicable only for the interim period necessary for the Secretary to complete any required analyses or consultations related to the petition for non-regulated status: Provided further, That nothing in this section shall be construed as limiting the Secretary’s authority under section 411, 412 and 414 of the Plant Protection Act.

    First thing: This means that if the Secretary has in hand scientific evidence that a plant is not eligible for exempt status then that interim period necessary [….] to complete any required analysis is approximately 0 days. In other words, the Secretary is not compelled to hand out any meaningful permit.

    Second thing:

    Proponents of this change describe it as a piece of tort-reform, roughly analogous to anti-SLAPP legislation.

    They assert that there is a problem with anti-GMO activists suing to block new GMO seeds on what they describe as “procedural grounds”. Wikipedia kindly offers an example of what they are talking about:

    How we almost lost a large sugar crop due to a lawsuit that ultimately failed.

    This law shifts the burden a bit. As it was in 2010 the court at one point found itself to order the destruction of a large, economically important crop that was ultimately approved.

    With this newer change (which I think is not even original to this year), the burden shifts. Opponents of a crop would have to challenge the permit.

    • Will these “interim” regulations be like the “interim” Bush tax cuts? Interim is variable and can be stretched out for years.

      The statement that “nothing in this section shall be construed as limiting the Secretary’s authority under section 411, 412 and 414 of the Plant Protection Act” is the very worst form of cynicism.

      First, 933 is only relevant when the secretary deregulates and is blocked in doing so. He’s fully exercising his authority regulatory powers as per the sections mentioned when he deregulates. This offers nothing absolutely nothing different that what the secretary “shall” do to help Monsanto etc. bypass the courts.

      In addition, this is grossly misleading language. The first 70% of the

      • hvd

        Once again I have to point out that 735 only provides for “determinations of non-regulated status made pursuant to Section 411″. 411 only deals with plant pests, not plants. It is impossible to understand how this reaches Monsanto’s engineered plants.

        Although I didn’t want to, and have different reasons for believing so, I have to agree with Thomas Lord that this appears to be a manufactured controversy. You will have to show me how 411 actually reaches plants for me not to think so. I know that Monsanto is not an honest player and certainly do not trust Congress to look out for the public’s interest, particularly in this regard, but fact-based reading of this statute does not support this brouhaha.

  • Thomas Lord

    I don’t approve of “stealth legislation” but I can see the temptation for it in cases like this. This particular change in law has been so widely and so badly misreported that the falsehoods become their own kind of political truth.

    Serious discussions ought to be had about GMO crops and more generally about the precautionary principle, about ecological trajectories, about the economy, and about developing a new consensus of how to relate those to law.

    Where is the forum for that, though?

    Blog comments?!?

    • Since “serious discussions” have not taken place concerning “GMO crops” as you say above, how can you say there’s a “temptation” in this case, when you imply that we have not had “serious discussions.” Where’s the “precautionary principle” in allowing an administration that hired a former Monsanto lobbyist to run food safety at FDA a free hand at deregulation. It looks like we have the same sell out to the GMO/GE companies for food safety as we’ve had to Wall Street for handling the the bailouts.

      What’s next for the Monsantos of the world? Bailouts when they screw up, indemnification when they’re about to get sued (like the regional telephone companies got for illegal surveillance.

      The government is not a neutral operator. It is populated by people there to do a job for there vested interests. When there’s a question of safety versus profit who wins? We know who wins.

      • Thomas Lord

        It is tempting for legislators to try to not call attention to certain legislative acts that are likely to cause a big controversy rooted in false information.

        The press and the blogosphere contribute to such controversies when their effect is to propagate that kind of false information.

        I’m making a kind of exhortation directed at nobody in particular but the blogosphere and press (and so forth) generally to try to do better getting the facts right.

  • nymole

    It certainly was not discussed on the floor of the Senate or House before its insertion into a completely non-related bill. Where would you have it discussed ?(the burden is on you!)

    • Thomas Lord

      Nymole, I think you are responding to me even though your comment isn’t threaded that way.

      “It certainly was not discussed on the floor of the Senate or House before its insertion into a completely non-related bill. Where would you have it discussed ?(the burden is on you!)”

      My point is that politicians are inspired to hide this kind of legislation because of the way bad information spreads like wildfire in the press, blogosphere (like here), mailing lists etc.

      It’s one thing to talk about whether GMO crops ought to be categorically banned.

      It’s another thing to talk about whether this piece of legislation is or is not appropriate tort reform in light of experience.

      But it is kind of a problem to spread bogus panic and misinformation about this legislation — which has happened a lot (search the web, you’ll see what I mean.)

      The Senate floor, the press, and the blogosphere are examples of fine places to have the discussion but the press and the blogosphere aren’t doing that for the most part.

  • nymole

    I’d like to see some evidence that the stealth legislation was done for the public good…..

    unlike : this anecdotal but scary account of what seemed to have happened:
    This legislation’s railroading is yet another small cut into democracy,

    from what is not exactly a left-wing rag.

    • Thomas Lord

      I stopped reading when I got to this:

      With HR 933 now a law, however, the court system no longer has the right to step in and protect the consumer.

      because the article is apparently premised on that falsehood.

      • dk

        Thomas Lord :
        I stopped reading when I got to this:

        With HR 933 now a law, however, the court system no longer has the right to step in and protect the consumer.

        because the article is apparently premised on that falsehood.

        If it were a falsehood, I don’t think Vilsack’s office would be making these statements:

        Vilsack’s own reaction suggests he has doubts about the amendment’s legal standing.

        “Secretary Vilsack has asked the Office of General Council to review this provision,” the department told POLITICO, “As it appears to pre-empt judicial review of a deregulatory action which may make the provision unenforceable.”

        Read more: http://www.politico.com/story/2013/03/big-agriculture-tom-vilsack-monsanto-89268.html#ixzz2P2ltY5Kc

        • Thomas Lord

          To me, that sounds like an appointed official seeking an internal legal opinion affirming and helping to scope out his powers to impose “necessary and appropriate” conditions on these permits.

          In other words, there is now an (I would say manufactured) controversy in which some say that this law attempts to void court ordered injunctions. Vilsack has now said “Hey, Council, does this mean that I have to ignore court ordered injunctions?”

          It won’t be surprising if the first exercise of this provision draws a lawsuit or two either about the conditions imposed being too strong, or too weak in light of an injunction, or both. At that time, he’ll want this opinion to point at as to why the department did what it did.

          Remember that in the SCOTUS case that triggered all this the problem with the lower court’s sweeping injunction was that it was over-reaching. SCOTUS found that it could be possible to partially de-regulate in ways that were unlikely to cause the specific harm the plaintiffs had come to court about.

          *That’s* the main thing that ensures that in cases like the sugarbeats the threshold for a “tear out the crops” injunction is very, very high. This law doesn’t end-around such an injunction because such injunctions can’t happen without very good reason.

          Lesser injunctions can still happen and have effect. These open the door to an interim period of partial deregulation while the case proceeds. That’s the reality imposed by SCOTUS.

          This controversial provision circumscribes a procedure for that.

  • nymole

    Thomas, I post very rarely, and I post to clarify more than to debate. Here are my two replies to your replies.

    1.On your comment:”I stopped reading when I got to this:”
    I don’t think my request

    ” I’d like to see some evidence that the stealth legislation was done for the public good….. unlike the anecdotal…”

    needed the first part of that article to be beyond reproach or merited anything but skimming , but I have yet to read any more definitive account. – my particular interest was in the excerpt starting with “How it happened” – which I had thought was a little long to quote. The “it” is the railroading referred to in the title, not the description of HR933 just prior to “How it happened.” , so the “How” is not invalidated.

    The legality of how section 735 was injected into the bill in the first place is something of a gray area.

    The so-called Monsanto Protection Act was added to HR 933 while the bill was under the Senate Appropriations Committee’s review. Some legal experts say — and procedurally, they seem to be correct — the clause should have been introduced via the Agricultural or Judiciary Committees. It’s still not clear who, if anyone, brought that matter up before the bill was turned into law.

    Even scarier is that section 735 was anonymously added to the bill’s wording.

    Scarier still is that when asked about section 735, most Democrats knew nothing of it. (Shouldn’t our elected officials actually be, you know, reading the bills they’re turning into law?)

    Scariest of all are allegations that Monsanto and Sen. Roy Blunt, R-Mo., worked together to craft the language of the provision.

    Did Blunt not know that Monsanto contributes to congressional campaigns on a fairly regular basis? For that matter, did Blunt not realize that Monsanto would stand to gain significantly if section 735 survived and HR 933 was signed into law? Not likely.

    ————————————————————–

    2.The Wikipedia account you named a few posts back as offering an example of obfuscation on matters sugar-beet-related:

    This article you name “How we almost lost a large sugar crop due to a lawsuit that ultimately failed” (I would call that a negative title), known at its source by the less sexy and polemical “Litigation over glyphosate-resistant sugar beet” does give quite an interesting account of one process of litigation.

    However, ,without your title (oh, the word “almost” !) it does does not quite fill in the blanks to arrive at “understandable” stealth (to us, not Monsanto).

    —————————————————————-
    My interest is in how- this time- one non-critical unrelated but controversial bit got into the “must pass” pending bill of the first quarter?

    I’m done with it here..

    • Thomas Lord

      Let me break down your main question into a two part answer:

      (a) The public interest served by having this temporary permit rule is that it implements in legislation a SCOTUS decision that USDA has this power to offer conditional permits.

      (b) I do not claim it is a good thing for the public that such legislation winds up getting passed this way. What I am pointing out is that factually bogus news reporting and blogging about this particular item is an example of why politicians are inspired to try to sneak such riders in and/or to express surprise to find such riders after voting on the bill.

      I can’t say, either, that it is entirely bad that things happen this way in cases where the reporting is so bad. It is better to have specific legislation about these permits than for USDA to rely only on the earlier SCOTUS decision. If the bogus reporting had the effect of blocking this rider, USDA would still have a similar but less regulated power.

      http://en.wikipedia.org/wiki/Monsanto_Co._v._Geertson_Seed_Farms

  • Tina

    A question about farms, doesn’t the top 2% of farms produce 50% of food production? Also, even if a large farm is family owned doesn’t mean that their production is not owned by corporations. Aren’t a lot of these farms contracted out to corporations?

    • JustPlainDave

      Can’t see how that concentration of production can hold for the industry as a whole (might be true for some crops, etc.) given the figures I’ve seen. Economic value should be a pretty decent proxy measure for “food” generally and it doesn’t get that concentrated.

      As to production contracts involving corporations, I would expect that to be a significant percentage of total production value – don’t know whether that would constitute the majority of food produced. I’m pretty unconvinced that it particularly matters one way or another – the vast majority of all agricultural product is produced for corporations in some way (if not contracted to them at a pre-agreed price, then on the open market), regardless of what the specific form of the relationship is (and frequently one would find mixtures of relationships on any given farm, in any given season). Production for corporations has been the norm in the US for many decades – significantly predating the public rise of the “corporate farming” political construct.

    • Don Henry Ford Jr.

      In today’s environment, fewer and fewer farmers farm increasing larger tracts of land. Nearly all are in debt. They buy seed, fertilizer, equipment, parts and fuel from a few major corporations and they sell the produce to a few other but related corporations.

      Government subsidies and insurance programs (subsidized as well) provide profits, but with these come extreme and detailed forms of control.

      It matters not whose name is on the title of the farm in such a scenario.

      Owning the land is considered a liability for the government/banking/corporate machines with such loyal/indebted serfs at their disposal.

      I am not saying farmers don’t derive a decent living from what they do, just that while they may appear to be free small business owners, in actuality they have very little leeway in what they can afford to do and still survive the business climate.

      The use of Monsanto products is baked into the cake for all but a few specialty crop providers.

  • Thomas Lord

    Some people are reading a lot into the fact that the provision says the secretary “shall” rather than “may” issue a permit. So, what’s going on there?

    Consider the organic “fooberry” and GMO “fooberry-plus” hypothetical. Joe plants far away from any organic fields and his planting produces no cross pollenation risk. Jane plants adjacent to an organic field.

    The court finds that plantings like Jane’s present an imminent risk to organic fields and issues an injunction against them until the updated review of fooberry-plus is completed. The de-regulation of fooberry-plus is, at least temporarily, voided.

    The Secretary may not issue a permit for Jane’s crop, assuming that the injunction is not declared by a higher court to be over-reaching.

    There is no injunction against Joe’s planting but, also, the de-regulation was (at least for now) voided — so Joe’s planting is technically unauthorized.

    Joe asks for a permit on the condition that he stays put, far away from any organic fields. This would not violate the court’s injunction.

    By saying “shall” rather than “may” the provision indicates that Joe can have his permit by right. Otherwise, without that, the Secretary would be free to withhold such permits for arbitrary reasons including non-scientific reasons, including purely political reasons.

  • Don Henry Ford Jr.

    It will be interesting to see how this town fares in their attempt to regain food sovereignty.

    A friend hopes to incorporate a small town near my home to try something similar.

    I bought and reconstructed an old general store in the town.

    While I think locals will be OK with the idea, I doubt the same can be said of our state and federal officials.

    • That’s an interesting idea. The more complex government gets, the more likely it is that actions start to powerfully impact particular groups not looking for trouble. How do I apply for citizenship in your town? Got a name yet?

      • Don Henry Ford Jr.

        The town exists and has for a while but is not incorporated. Belmont, Texas. Halfway between Seguin and Gonzales, Texas and one mile from my home.

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