Alfalfa Seeds and the Supreme Court.

As expected, this week's Supreme Court oral arguments on Monsanto had much less to do with the pros and cons of genetically modified (GM) seeds than it did with the ins and outs of environmental regulation.

On that point, the justices who actually spoke seemed fairly skeptical of the Ninth Circuit's decision to completely halt the sale of Monsanto's Roundup Ready alfalfa seed, rather than just sending the question back to USDA to re-decide.

That said, we did get some insight into how the justices are thinking about GM agriculture. In particular, we learned that Antonin Scalia does not think that cross contamination between conventional/organic crops and GM crops is "the end of the world."

To which the attorney for Geertson Seed Farms, one of the plaintiffs, offered the entirely appropriate and accurate rejoinder: "I don't think we bore an end-of-the-world burden, Justice Scalia."

At one point, Justice Sotomayor did jump in with the fact-based question of how GM contamination could reasonably be expected to occur out in the fields. She asked an attorney whether farmers in the U.S. often rent equipment from vendors to cut their fields. The suggestion is that farmers have a legitimate worry that tools used to cut a Roundup Ready alfalfa crop on one day might leave behind some modified seeds in a conventional field the next. Scalia admitted that sure, perhaps, that could, in theory, happen. And perhaps, sure, those farmers would find their crops unsellable in GM-unfriendly Europe. But here, Scalia was convinced that the market would solve things! In every agrarian nook and cranny of the United States! "You don't think that the free market would produce companies that advertise 'We only cut natural seed fields?'" Scalia went on to answer his own question. "I'm sure it would happen."

Monsanto's attorney attempted to leave the Court with the sense that the risk to farmers concerned about genetically modified agriculture exist only within their own minds, "Their harm," he said, "really boils down to the question of their psychological objection to genetically engineered alfalfa." But that's a question for another day.

--Nancy Scola

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