Did The Continuing Resolution Just Put Business Above The Law?

Genetically modified food (or GMOs) is a hot button topic for many people, and Monsanto (the company the owns/produces about 90% of the GMO seeds) is a favorite of conspiract theorists. However, the topic has been thrust somewhat in the spotlight with the passing of the continuing resolution (CR) to fund the government through September, 2013. Specifically, as it relates to the “Monsanto/Biotech Rider” (as it is known in the anti-GMO/conspiracy circles. Specifically, the contention is that a section of the “Farmer Assurance Provision” in the CR basically puts Monsanto above the law by giving the company immunity from federal court action if one of their GMOs are found to be endangering the public or environment, or found to have been planted illegally. In other words, it “would strip judges of their constitutional mandate to protect consumer rights and the environment, while opening up the floodgates for the planting of new untested genetically engineered crops, endangering farmers, consumers and the environment.”

Now I’ll admit, conspiracy theories are a guilty pleasure of mine, mostly in the form of talk radio programs that specialize in the topic. Rarely, do I take them seriously, but it’s fun to listen to the so-called “fringe” on a particular topic, and ever now and then some have a kernel of truth. So when I heard about this one, I decided to do a little investigation of my own; not that I have any particular beef with GMOs (although I’m not opposed to them being labeled as such, nor do I have any particular beef with Monsanto (although they have been known to be corporate bullies toward small family farms) to see if there is any truth to the claims – let’s face it, it would be a big problem if it were true.

The first thing I noticed when searching for information on this “Monsanto Rider” is that there are a lot of websites linking to each other, saying basically the same thing, and citing the other similar sites as sources. Basically, they’re all saying the same thing without linking to the actual language of the rider – typically a bad sign for the truth. So I looked up the provision in question, Section 735 of H.R. 933 (the continuing resolution):

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.

Ok, I’m not a lawyer, and this is a lot of legalese, but it specifically references Section 411(a) of the Plant Protection Act:


a) PETITION.—A person may petition the Secretary for a determination that an organism that is subject to regulation by the Secretary as a plant pest under this Act is not a plant pest for purposes of this Act.

Also, Section 412(c) is also referenced:


 (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—

(1) be accompanied by a permit issued by the Secretary prior to the importation, entry, exportation, or movement in interstate commerce;

(2) be accompanied by a certificate of inspection issued (in a manner and form required by the Secretary) by appropriate officials of the country or State from which the plant, plant product, biological control organism, noxious weed, article, or means of conveyance is to be moved;

 (3) be subject to remedial measures the Secretary determines to be necessary to prevent the spread of plant pests or noxious weeds; and 

(4) with respect to plants or biological control organisms, be grown or handled under post-entry quarantine conditions by or under the supervision of the Secretary for the purposes of determining whether the plant or biological control organism may be infested with plant pests or may be a plant pest or noxious weed.

 So there it all is. Clear as mud? Yeah, to me too. From what I can understand, the “Monsanto Rider” seems to be saying that if it someone petitions the Secretary of Agriculture to remove a plant from regulation (having a “plant pest” status) and the petition is granted; if that petition is later found to be invalid (presumably by a court or federal judge) based on harm it is doing on people or the environment, “a farmer, grower, farm operator, or producer” can be granted a permit by the Secretary of Agriculture to continue to produce, transport and cultivate the plant while the Secretary make a determination regarding the status of the plant in question (whether it should be regulated or not).

What’s interesting to me is why such non-spending issues should be included in a spending bill, especially one considered a “must-pass” bill in order to keep the government funded (that’s a whole different story). Oddly, it is unclear how the rider got included in the CR (no one is claiming responsibility), but there is some indication that it was at the request of Senator Mark Pryor (D-AR). Predictably, he’s not responding to requests regarding his role in the issue

Again, I’m not a lawyer, so all the “notwithstanding provisions to the contrary” talk sometimes throws me a bit. However, there is no specific mention of Monsanto, but one can see how it would apply to the company and their GMOs. In looking at the language, though, I get the sense that it may have more to do with disrupting the production of food, if some activist is able to find a judge to order an injunction against a GMO on weak evidence (or if they find an activist judge).

Although I do see the potential for abuse, if say there looks to be some link between a specific plant and cancer, for instance. This rider would allow the company/farmer to continue to produce that plant, even if a court ordered an injunction against it. I think this is from where the over-the top conspiracy theories may be springing…and maybe for good reason. Even Senator Jon Tester (D-MT), who sponsored an amendment to remove the rider from the CR (that was ultimately not voted on) thinks there is a big problem with the rider:

“The provision says that when a judge finds that the USDA approved a crop illegally, the department must re-approve the crop and allow it to continue to be planted regardless of what the judge says. Think about that.”

Tester went on to say that the provision ignores separation of powers in the Constitution and “also lets genetically modified crops take hold across the country even when a judge finds it violates the law.”

 That’s a pretty bad worst case scenario. I’ll admit that I’m nowhere near the circle of those drafting these provisions, so I don’t know what they had in mind when crafting the language. Although, at the very least, it appears that this is a classic case of a slippery slope in potentially giving a company immunity from injunctions ordered by federal courts.