Elena Kagan and Monsanto


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.

JOSHUA FRANK is co-editor of Dissident Voice and author of Left Out! How Liberals Helped Reelect George W. Bush (Common Courage Press, 2005), and along with Jeffrey St. Clair, the editor of Red State Rebels: Tales of Grassroots Resistance in the Heartland, published by AK Press.

A version of this piece first appeared in Truthout.org.




JOSHUA FRANK is managing editor of CounterPunch. His latest book, edited with Jeffrey St. Clair is  Hopeless: Barack Obama and the Politics of Illusion. He can be reached at brickburner@gmail.com. You can follow him on Twitter @brickburner

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