Arnold Taylor and his son farm 3,500 acres south of Saskatoon, Saskatchewan. The Taylors raise organic beef, and grow organic-certified wheat, oats, barley, mustard, lentils, and, until recently, canola. Since the advent of genetically engineered (GE) canola in the mid-1990s, organic growers in Saskatchewan have had an increasingly difficult time finding untainted seed and keeping their fields free of contaminated GE pollen from neighboring farms.
“Organic canola is pretty much not in existence [in Saskatchewan],” Taylor said. “You can’t buy seed because seed is all contaminated. We had a farmer two years ago that had to go 500 miles to get uncontaminated seed.” And if you can find seed, Taylor added, the traders who buy canola and sell it internationally face the major risk of having a load of organic canola rejected once it gets to Europe. “The traders have told us that they’re just not selling it because there’s too much risk,” Taylor told Terrain.
But Taylor and the group he leads are fighting back with a class-action lawsuit against GE canola sellers Monsanto and Aventis CropScience. The suit would enforce liability for the damage done by GE canola and head off similar potential damage to wheat, which is being developed into genetically engineered strains. “We have the right to grow [organic] canola, and they’ve taken that right away from us,” said Taylor, who is the president of the Saskatchewan Organic Directorate, an umbrella group that represents organic farmers, grain buyers, and consumers. “Our rotations depend on wheat. If [GE] wheat comes in, it would become very difficult to be an organic farmer in Saskatchewan.”
According to the Statement of Claim filed in January in the Saskatchewan provincial court, the suit aims to enforce strict liability on the two companies on multiple fronts: negligence, nuisance, non-natural use of land, trespass of the companies’ seed on farmers’ lands, air pollution with pollen and seed, and failure to fulfill required environmental impact studies for both the uncontrolled release of GE canola and new test plots of GE wheat. Once the suit passes its first hurdle, getting certified as a class action, farmers elsewhere in Canada will be able to join it.
“We want to hold the companies responsible for the consequences of their seed,” Taylor said. “They put GE canola out on an unconfined-release basis. They had no border strips or information for growers. They just assumed that they were going to be able to browbeat everyone into accepting it.” But, as Taylor pointed out, consumers in Europe and Japan are steadfastly resisting GE crops: Europe rejects all crops with more than 1% GE content, and Japan’s limit is just 0.5% — and farmers like Taylor are paying the price.
Few Legal Precedents
Liability for genetic engineering’s consequences, from current pollen drift to potential problems like pesticide resistance, remains ill-defined. Traditional crop insurance in the US, according to Paul Horel of the insurance industry–sponsored Crop Insurance Research Bureau, covers only natural events like hail. Though weather is inherently unpredictable, insurance companies can reliably predict overall average losses from hail, Horel said. Not so with GE contamination. “It’s a pretty dicey thing for private companies to pick up,” he said. “They would have to get reinsurance, and I’m not sure that there’s enough reinsurance out there.”
The two main GE liability battlegrounds thus far are the current debates over crop contamination and the StarLink debacle of 2000, when GE corn approved in the US only for animal feed was found in taco shells and other consumer products.
In the StarLink case, Aventis CropScience, which made and sold the seed, ended up voluntarily paying farmers and elevators for their losses, after several states’ attorneys general threatened to file suit. “The best response in a case like this is for them to get out their checkbook and pay for all the costs,” said Iowa State University Professor Neil Harl, a foremost expert on agricultural law. “Initially, they weren’t quite as forthcoming as they were later with a little prodding from the attorneys general.”
But since the case didn’t go to court, it set no new legal precedents. The only other precedent that might apply, said Harl, is the established liability that pesticide sprayers have if they damage or contaminate adjacent farmland. But genetically altered crops pose much greater challenges in proving who caused what damage. “With spray, you have just one firm spraying on one day,” Harl said. “With pollen, it can drift any direction, 30 feet or a mile or so. You can imagine a lawsuit, and the defense lawyers would just have a field day talking about all the different ways [contamination] could have happened.”
Harl said he has been encouraging farmers in Iowa to explicitly not guarantee that their crops are free of GE content. He helped the state government develop a form for farmers to shed any responsibility for the marketability of their crops in overseas markets that won’t buy GE products. Without such a form, farmers who know that their grain is heading to Europe are giving what Harl called an “implied warranty” that their crop will be accepted — and grain buyers could sue farmers if their grain is rejected for having too much GE content.
Such a suit would be very difficult for a grain buyer to win, since any load of grain might contain portions from numerous farms, but some grain elevators in Iowa actually made a form, similar in appearance to Harl’s state form, that turned liability back on to the farmer.
“There’s a huge power play,” said Bill Wenzel, national director of the Farmer-to-Farmer Campaign, a nationwide effort to build farmer opposition to GE crops. “Regardless of the pressure being applied by industry, [farmers] will continue to fight for GE-free seed.”
Lost in a Sea of GE
Organic corn in the US Midwest may be following the same road as canola in Canada. David Vetter has been growing certified organic corn and other crops on his 288-acre farm in central Nebraska since the 1970s. His farming, along with the organic grain-processing business he runs on his farm, pays the bills — but the farm’s profits are about equal to the premium Vetter gets because his produce is certified organic.
That premium may be in danger from contamination by genetically altered crops. Vetter, who stopped using canola in his grain business several years ago for fear of GE contamination, has been rigorously testing both his seed and his crops for genetically altered content for the past four years. The tests came up positive in 2000 and 2001. “It’s gotten now where seed suppliers won’t even guarantee their seeds,” Vetter said. “It’s at the point now where I don’t believe that you can buy corn in this country and guarantee that it has no [genetically altered content].”
Researchers at the University of Maine released study results in February that showed that GE corn cross-pollinates natural corn at about 1% or less for test plots grown 100 to 130 feet apart. That may sound insignificant, but the US Department of Agriculture organic standards have zero tolerance for GE content. Study author Michael Vayda downplayed the danger for organic farmers. “It’s a matter of knowing what your neighbors are planting, and setting border rows,” he told Terrain.
But Vetter, whose 288-acre farm is only 15% to 20% the size of his neighbors’, says he can’t afford to lose cropland to buffer strips and other unplantable areas. And last year, Vetter had to scramble to find corn entirely free of GE content for one customer. That corn was of a lower grade, and the customer hasn’t been back. Plus, Vetter had to pay to test the corn. “I spent $1,500 myself on testing to sell a load of corn worth about $4,000. There’s no future in that.”
“Those costs should belong to whoever owns that technology,” Vetter said. “And the farmers don’t own the technology, they rent it. The companies own it. If my neighbor bought a tractor that has no control mechanism, and it [gets loose and] destroys my crops, you can bet that my neighbor or the person who sold him the technology would have to pay for it.”
Bread and Butter Fight
Liability for the damage done by GE canola and corn is critical, but the real fight, said farmers in North Dakota, will be over Monsanto’s experimental GE Roundup Ready wheat, the herbicide-tolerant strain awaiting approval by the US Food and Drug Administration.
The Saskatchewan lawsuit contains demands for injunctions against even the current field-testing of GE wheat. Widespread open planting of GE wheat across the grain belt poses obvious risks, but Taylor said even small field tests pose a real danger. A recent tornado swept up entire fields of GE canola in southern Manitoba. “A test plot of wheat, a tornado would take out the whole works, and who knows where it will end up,” he said.
Conventional wheat farmers in the United States are just as alarmed. Todd Leake, a wheat farmer in Emerado, North Dakota, paints a doomsday scenario for the contamination of the nation’s entire wheat seed stock. Hybridized wheat “foundation seed,” the source for most farmers’ wheat, must be grown anew every year, and many of the university plots where it is grown, said Leake, are near test plots for GE wheat.
“What we fear is that not only will the new varieties of research wheat be contaminated by the GE traits, but also that those will be expanded and the problem will [spread] across the continent,” Leake said. “Within a matter of years, we could completely contaminate the entire continent’s wheat supply.”
“Everybody wants genetically modified wheat stopped, except Monsanto,” Leake said. “Everybody eats bread, and this is where the battle is going to be fought.”
Leake is a member of the Dakota Resource Council, a grassroots group promoting sustainable agriculture. It’s planning to lobby for restrictions on open field trials of GE wheat, petition US Secretary of Agriculture Anne Veneman for a moratorium on GE wheat, and keep her department from authorizing any market release.
“In so many languages, the word for wheat is synonymous with life. I think that the fight over wheat is going to be the defining moment in the fight over genetic modification, because we’re at the point where we haven’t screwed it up yet,” Leake said. “What we need to do is to make [our resistance] quite clear to the secretary of agriculture, the executives of corporations, the researchers at universities, and our senators and representatives.”
