Elena Kagan and Monsanto

Going to Bat for GE Foods
By Joshua Frank
CounterPunch.org, May 19, 2010

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 Environmental 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 nationwide ban on Monsanto's Roundup Ready alfalfa.

"USDA should start over and truly evaluate the contamination 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. Monsanto appealed the lower court's decision so the USDA was not
party to the suit. The Solicitor General's office produced an amicus
brief during the petitioning stage of the appeal at the behest of the
Supreme Court.
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.

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 ago, 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.
http://www.counterpunch.org/frank05192010.html