Pardon the riffing

El Dragon over at Fair Food Fight posted that companies like Monsanto should get ready to face suits from organic farmers whose crops are sullied by GMO seeds. Check out his discussion here.

One major issue, however. The suits from Monsanto against non-GMO-seed-using farmers were patent infringements - Monsanto literally owns the biologic composition of the crops that drifted into neighboring fields. Organic farmers have no such claim, as the organic nature of their crops is not patentable.

Therein lies the fundamental problem. There may not be a cause of action here - at least not one that I can think of. (Fellow legal folk, can you help me out?) We would probably have to look to tort law, but in what form? Negligence? There is not currently a duty of care for GMO farmers to protect the fields of their organic neighbors. Maybe nuisance? Trespass? A Canadian case made the argument for nuisance, negligence, trespass, and pollution under several Canadian statutes. (The case was thrown out for lack of class-action status on the part of the farmers.) I'm not sure if the common law claims would survive, however, or if there's a reasonable statutory provision that can be applied. Barring some form of statutory duty to protect your neighbors crop, or some form of explicit protection for organic farmers the courts may not find the necessary cause of action.

The government is getting tougher on GMOs. In September, the US District Court in San Francisco ruled that the USDA had failed to do the appropriate level of environmental investigation prior to approving Monsanto's Roundup-Ready sugar beets. “The potential elimination of farmers’ choice to grow nongenetically engineered crops, or consumers’ choice to eat nongenetically engineered food … has a significant effect on the human environment,” Judge White noted in the decision (p. 13). A plaintiff in the case, Frank Morton, is an organic sugar beet farmer. He noted that it costs $300 to test his crops for genetic modifications, and if he finds genetic anomalies, his crop becomes worthless. “This industry could be destroying the crop value of organic growers and organic growers would not have the slightest idea they were in danger until their stuff turned up contaminated,” he said. “This is why I made a stink about this.” The sugar beet decision follows a 2007 decision enjoining farmers from planting Roundup Ready alfalfa until complete environmental impact statements are filed. The District Court decision was upheld in the 9th Circuit.

This seems like the more viable route for legal action by organic farmers against GMO contamination. If the USDA begins actually applying NEPA in conducting EIS's of GMOs, including assessments of their potential for crop contamination, organic farmers should get better protection. It may take a few more individual court cases against specific crops under NEPA, however, before widespread EIS requirements are adopted by the USDA.