On Friday, the agency also retracted its only other hook for regulating GM crops—the noxious-weeds provision. The Center for Food Safety had petitioned the USDA to classify genetically modified bluegrass as a noxious weed. The case for this is strong: Gurian-Sherman explains that bluegrass has light pollen that can be carried for miles on the wind, meaning that genetically modified bluegrass can easily transfer its genes to established conventional bluegrass.
And like most grasses, bluegrass spreads rapidly. Anyone who has ever grown a garden can testify that it's tough to get rid of unwanted turf grass. In fact, Scotts is also seeking deregulation of Roundup Ready bentgrass, another grass that has proven hard to control. In 2005, Scotts grew trial plots of its bentgrass in Oregon. It escaped the boundaries of the experimental plot and is still creating problems for homeowners miles away.
For homeowners, dealing with rogue Roundup Ready bluegrass may mean resorting to chemicals far more toxic than Roundup.
In one of the documents (PDF) released last Friday, the USDA conceded that, by its own reckoning, Scotts' genetically modified bluegrass "can be considered for regulation as a Federally listed noxious weed that shows potential to cause damage to crops and natural resources of the United States." But to avoid actually declaring it a noxious weed, the agency simply claimed that the weed risks posed by genetically engineered and conventional are "essentially the same."
That's highly debatable, since anyone who wants to address weed problems from conventional bluegrass can turn to Roundup, the nation's most-used herbicide, whereas dealing with rogue Roundup Ready bluegrass means resorting to chemicals far more toxic. Starting with the "essentially the same" premise, the USDA notes that conventional bluegrass is already widely planted across the country without causing much harm; from there it assumes that Scotts' engineered bluegrass won't be a problem either, concluding that it need not be declared a "noxious weed" after all. And if it's neither a plant pest nor a noxious weed, the USDA has no right or obligation to regulate it. Game, set, match to Scotts Miracle Gro. Or, to use a more appropriate sports metaphor: a hole in one for Scotts!
So where does this leave us? If the plant-pest fiction no longer applies (Gurian-Sherman says fewer and fewer novel crops rely on it), and if even crops that carry an obvious noxious-weed risk won't be regulated as such, then what happens?
Well, if the USDA doesn't regulate novel GMOs, then it has no obligation to perform environmental-impact or endangered-species analyses of new organisms in the biotech pipeline, including plants engineered as pharmaceutical substances and biofuel feedstocks. In an email exchange, a USDA press officer confirmed that the agency would not be conducting an environmental-impact statement on Roundup Ready bluegrass—and by extension, any other crops that don't count as plant pests or noxious weeds.
The USDA "is a rogue agency...It has been rebuked time and time again by the courts for its failed oversight of these crops."
And that means watchdogs like Center for Food Safety will no longer have a legal foothold to sue the USDA for regulating those things badly—which is usually how it's done. In the wake of several recent deregulations—including Roundup Ready sugar beets, alfalfa, and bentgrass—federal courts have sided with Center for Food Safety and rebuked the USDA for failing to properly assess risks. Are such lawsuits, essentially the last line of defense for GMO regulation, a thing of the past? "We're still analyzing the documents," says George Kimbrell, the center's senior attorney.
But Kimbrell made an important point: "Look, [the USDA] is a rogue agency," he said. "It has been rebuked time and time again by the courts for its failed oversight of these crops."
Implication: Take away the plant-pest and noxious-weed hooks and the courts can no longer intervene. The industry gets free rein to plant whatever it wants—wherever it wants. This development worries Gurian-Sherman. "Will some companies still want to have the fig leaf of USDA regulation even if they're not using plant-pest material? Probably," he says. "But they don't have to. It's now their choice."
Moreover, he adds, "the noxious-weed standard has been set so high as to be virtually meaningless." The message to industry is clear: "You can completely skirt the regulatory process."