'Biotech Rider' In Budget Angers Opponents Of Genetically-Modified Crops

Hidden inside the massive federal budget that President Obama signed on Thursday is a small paragraph that has infuriated opponents of genetically-engineered crops. The provision is designed to protect those crops from court challenges. Audie Cornish talks to Dan Charles for more.

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Tucked away inside the new federal budget for this year - which President Obama signed yesterday - is one, small paragraph dealing with genetically engineered crops. That paragraph - actually, one long, complicated sentence - has the biotech industry smiling. But opponents of biotech crops are hopping mad. They say this biotech rider, as they call it, is a blatant attempt to shield biotech crops from all judicial oversight.

Joining me now to talk about this is NPR's Dan Charles. Welcome, Dan.

DAN CHARLES, BYLINE: Nice to be here.

CORNISH: All right. So be patient with me here as I kind of read through this because it's complicated. It seems that this paragraph is saying that if the USDA approves a genetically engineered crop, and then a court says that approval violates the law - for some reason, the USDA is supposed to go ahead with temporary permits that let farmers keep growing the crops anyway. Is that right?

CHARLES: That is pretty much what it seems to say, if we all understand it correctly. And none of this has been litigated yet, and that may still be to come. But the thing is, this comes with a kind of a backstory. There have been genetically engineered crops that have been challenged in court; specifically, two cases got the - sort of the ag lobby really angry. In 2007, an alfalfa - genetically engineered alfalfa was taken off the market because of a court decision. And in 2009, sugar beets, which had been approved by the USDA, were taken off the market because a court decided.

In both cases, the same court in San Francisco decided that the USDA had not done all the environmental reviews that it should have done. So those crops went off the market for three - or almost four years; and then the USDA finished all their environmental reviews, and they came back on the market again.

Farmers and the biotech industry were, frankly, just outraged by these court decisions. They - it sort of played into their feeling that, you know, the courts, especially this court in San Francisco, just doesn't understand agriculture. So this law, you can see, it's kind of an attempt to basically tell the courts, you can't get in the way of these biotech crops.

CORNISH: At the same time, I can imagine that it would raise some serious constitutional issues.

CHARLES: Yeah. It seems to although it's a little unclear, at this point. Secretary of Agriculture Tom Vilsack has asked his general counsel to look at this provision. According to Vilsack, it seems to pre-empt a judicial review, and so it may be unenforceable. Some legal scholars that I've talked to say it's a little unclear. They say agencies do, in fact, have this authority to go ahead on an interim basis, when a particular ruling has been struck down, to come up with a temporary solution to a problem.

But the problem may be - for this provision - that Congress isn't saying the agency has the right to do this, in its good judgment; Congress is saying the agency shall do this. The agency shall not allow a court to simply stop a biotech crop from being planted.

CORNISH: Give us a sense of the reaction here. I mean, how big is it?

CHARLES: Well, it's a controversial provision, obviously. Even when it was being considered in the Senate, Sen. Jon Tester - who is a farmer, actually, from Montana - he got up and was outraged not just at this provision, but a couple of other provisions that the ag lobby had been pushing.

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SEN. JON TESTER: These provisions are giveaways, pure and simple; and will be a boon worth millions of dollars to a handful of the biggest corporations in this country.

CHARLES: Some other opponents call this provision the Monsanto Protection Act, referring to - you know, the big biotech company that sells a lot of genetically engineered crops. And on the other hand, some farm groups, the biotech industry was reacting to this law with satisfaction. In fact, they have a different name for the provision; they call it the Farmer Assurance Provision. They say this simply makes sure that farmers, if a crop is approved and they plant it, that they'll be able to harvest it.

CORNISH: That's NPR's Dan Charles. Dan, thank you.

CHARLES: Nice to be here.

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