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THE PROGRESSIVE REVIEW - May 17, 2010
Supreme Court Nominee Elena Kagan Goes to Bat for Monsanto,
Sides With Conservative Justices
by: Joshua Frank
truthout|Report
Alfalfa is the fourth largest crop grown in the United
States and Monsanto wants to control it. On April 27, the
Supreme Court heard arguments in a case that could well
write the future of alfalfa production in our country.
Fortunately, for those who are concerned about the
potential environmental and health impacts of genetically
engineered (GE) crops, Supreme Court nominee Elena Kagan
is not yet residing on the bench.
For the past four years, the Center for Food Safety (CFS),
a Washington DC-based consumer protection group, and others
have litigated against Monsanto and the United States
Department of Agriculture (USDA) regarding the company's
Roundup Ready alfalfa. The coalition has focused their
fight against Monsanto's GE alfalfa, based on concerns
that the plants could negatively impact biodiversity as
well as other non-GE food crops.
In 2007, a California US District Court ruled in a landmark
case that the USDA had illegally approved Monsanto's GE
alfalfa without carrying out a proper and full Environ-
mental Impact Statement. The plaintiffs argued that GE
alfalfa could contaminate nearby crops with its genetically
manipulated pollen. Geertson Seed Farm, with the help of
CFS, claimed that the farm's non-GE crops could be damaged
beyond repair by Monsanto's Roundup Ready alfalfa.
Monsanto's well-paid legal team appealed the court's
decision, but, in June 2009, the Ninth Circuit Court of
Appeals upheld the previous ruling and placed a nation-
wide ban on Monsanto's Roundup Ready alfalfa.
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"USDA should start over and truly evaluate the contamin-
ation of non-GM alfalfa and the potential affects on
seed growers, organic and natural meat producers, dairy
producers, and conventional and organic honey producers,"
said farmer and anti-GE advocate Todd Leake shortly after
the ruling.
Monsanto, however, didn't back down and appealed the Ninth
Circuit's decision to the US Supreme Court. In stepped
Elena Kagan, whose role as solicitor general is to look
out for the welfare of American citizens in all matters
that come before the high court.
Unfortunately, Kagan opted to ditch her duty and instead
side with Monsanto. In March 2010, a month before the
Supreme Court heard arguments in the case, the solicitor
general's office released a legal brief despite the fact
that the US government was not a defendant in the case.
As Kagan's office argued, "The judgment of the court of
appeals should be reversed, and the case should be remanded
with instructions to vacate the permanent injunction
entered by the district court."
Despite numerous examples of cross-pollination of GE crops,
Monsanto argued during the April 27 court proceedings that
this was highly unlikely to occur. CFS and other plaintiffs
are concerned that a federal law could be affected by the
Supreme Court's ruling. Courts in Oregon and California
have already argued in previous cases that GE seeds must
also be studied as to the potential impact on other
conventional and organic crops.
Surprisingly, it seems that Kagan does not support a
thorough study of GE seeds and their potential impact
on environmental and human health. In doing so, Kagan
has sided with conservative justices on the court who
appeared skeptical that the lower courts had made the
right decision in banning GE alfalfa.
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During the Supreme Court hearings, Chief Justice John
Roberts questioned whether the Ninth Circuit had the
authority to issue a ban on GE alfalfa. Roberts contented
that the court ought to have instead remanded the issue
back to the USDA. Conservative Justice Antonin Scalia took
his defense of Monsanto even further, stating, "This isn't
the contamination of the New York City water supply," he
said. "This isn't the end of the world, it really isn't."
Apparently Scalia and Roberts aren't up on the latest
scientific analysis that Monsanto's GE crops have, in fact,
bred new voracious super-weeds, which have forced farmers
to "spray fields with more toxic herbicides, pull weeds by
hand, and return to more labor-intensive methods like
regular plowing."
"Bowing to pressure from Monsanto and the other biotech
companies, our federal agencies approved [GE] corn and
cotton without requiring any mandatory testing for
environmental impacts," Andrew Kimbrell, executive director
for the CFS recently wrote. "And the expected happened: a
few years later, independent university researchers - again
not the government - discovered that this [GE] pesticide
was potentially fatal to Monarch butterflies and other
pollinators... Without mandatory government testing, we're
clueless about the universe of keystone pollinators and
other species that are being decimated as the [GE] plants
continue to proliferate in our fields."
The Supreme Court's decision on Monsanto's alfalfa ban
will likely come early this summer. Justice Stephen Breyer
recused himself from the case because his brother Charles
Breyer oversaw the lower court's decision against the
company. Unsurprisingly, Justice Clarence Thomas, who once
worked in the legal department for Monsanto, did not recuse
himself from the matter.
While Elena Kagan has no experience on the bench and has
provided the public with little to no information about
where she stands on some of the most important issues of
the day, the fact that she came to bat for Monsanto two
months, at a time when the company is reeling from negative
press, may shed some light on how she could rule in future
GE cases if she's confirmed as the next Supreme Court
justice.
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