Monsanto’s Reported Ability to Influence Senator Roy Blunt into Doing Its Dirty Work Exemplifies How Rotten Congress Is — Section 735 of the Newly Signed Appropriations Act (HR 933) Deprives the Judiciary of Its Power to Protect both Environment and Public Health against GMOs Gone Awry

04 April 2013

What follows is a traipse through a bit of legal analysis —

But the journey is worth it, if you want to be informed as to how plutocrats end run the public interest by bribing Congress’ members to do their dirty work.

Section 735 of the new Appropriations Act (originally named HR 933) is a particularly sensational example of what regularly goes wrong in what we still pretend is a democracy “of and for” the People.

We will get to what Section 735 says after some necessary background information.

In the interim you can delight in how two kinds of political “spin” have renamed that appropriations rider:

the “Monsanto Protection Act” (by opponents)

the “Farmer Assurance Provision” (by corporate supporters, who cleverly pretend they’re doin’ it for the farmers).

Disclaimer — I am not opposed to the genetic modification of crops

Even though in this instance, Monsanto and its imitators — joined by the often irresponsible United States Department of Agriculture — have engaged in a spectacularly stupid experiment that has:

(1) made the preservation of competing “natural” crops virtually impossible in some regions,

(2) engendered an explosion of plant and insect pests that are now resistant to previously useful control mechanisms,

and

(3) encouraged the distribution of still higher volumes of pesticides and herbicides in American water and soils.

Biologically and environmentally knowledgeable people should have become concerned a long time ago, even in the absence of the now contributing idiocy of Section 735’s societally indefensible provisions.

Background — why is it environmentally legitimate to be concerned about some aspects of the movement toward genetically altered crops and organisms?

I have previously explained why evidence based concern is valid in regard to the varieties of genetically modified crops that Monsanto and others — like Archer Daniels Midland, Scotts Miracle-Gro, and Syngenta AG — have been introducing:

here — Department of Agriculture refuses to regulate genetically modified alfalfa,

here — genetically modified genes are escaping into unmodified plants,

here — genetically modified canola is now interbreeding with natural varieties,

here — insects are evolving dominantly inherited resistance to the Bacillus thuringiensis toxins that “Bt crops” produce.

None of these issues have anything to do with a direct concern about eating genetically modified foods. Which is something that the European Union has been concerned about.

Instead, legitimate worries center around already demonstrated harms to the ecosystem that supports us. These GMO companies have started a biological arms race with the natural world that we cannot win.

The companies, of course, do not care because they make their money from developing new “arms” to overcome the pests’ resistance to their previous ones.

Even if we thought this was a legitimate capitalistic endeavor — perhaps as a tenet supporting enhanced economic growth — lost in the shuffle is the physical harm done to the environment:

What these corporations don’t tell you is that, to take advantage of their herbicide resistant crops, farmers have to spray even more herbicides on their land to get rid of newly herbicide resistant weeds.

The same is true of pesticides. As bugs evolve resistance to the genetically induced bug-zapping toxins in plants, farmers have to use still more pesticides to control newly resistant varieties of insects.

Through this all, the corporations continue to make money — ultimately at farmers’ and the public’s expense:

The GMO companies enhance their profits by having to evolve new genes.

And “old fashioned” chemical companies get rich by having to stay ahead of the resistant organisms that the GMO companies are indirectly creating.

It’s a clever of profiting by abusing the environment.

What does Section 735 of the 2013 Appropriations Act do?

It indirectly prevents American courts from “enjoining” GMO activities, even after presumed future plaintiffs have shown that harm has been done and will continue to be done.

Although Section 735 addresses the Secretary of Agriculture, its real aim is eliminating interference from American courts.

The legal jargon in Section 735

I provide Section 735’s deliberately obtuse jargon to show you how plutocrats — and the Congressional toadies who do their will — use incomprehensible language to gain their goals.

You can read this text in the original PDF, here. (Scroll down to the end of page 34. The paragraph continues on to page 35):

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.

“So, Pete, what does this mumbo jumbo mean?”

As a former corporate and assistant attorney general, I think that Michele Simon (a public health attorney) interpreted Section 735 the way that a court is most likely to:

The rider pertains to transgenic crops that have been deregulated by the USDA but then had that approval overturned by a judge — a scenario that has occurred with genetically engineered alfalfa and sugar beets.

In such a situation, the agency “shall” immediately issue permits or a partial deregulation order that would temporarily allow farmers to continue growing and selling the crop until USDA is done re-evaluating its environmental effects, according to the rider.

You can be forgiven for wondering how Ms. Simon got her interpretation from of the statutory language that I quoted above.

Pertinent here is “Rule 1” of statute writing — namely that, if you do not want the public to know what you are doing behind its back, obscure the plain meaning of what you write in a way that only a lawyer can decipher.

Attorneys, being accustomed to making language mean almost the opposite of what it appears to, have no trouble at all in deciphering Section 735’s intent:

The Secretary of Agriculture cannot interfere with GMO crop production or distribution, even after a court says that “he” must — until a full and regulatory review has been completed.

Section 735 takes away the Secretary’s discretion to act proactively in the public interest, when things on the GMO front look bad.

Now, here’s the bit of law that I warned you about — injunctions

You may be wondering how we get to the judiciary from statutory language that is exclusively about the Secretary of Agriculture.

That’s part of the sleight of hand that Senator Blunt intentionally (unless he is incredibly stupid) pulled off. Monsanto and Blunt knew perfectly well that the branch of government most likely to force the Secretary to act against GMO activity (via imposed regulations) is the judiciary.

Judicial intervention usually begins via a case initiated by people trying to stop a harmful activity from proceeding. Which is exactly what happened to originate the USDA’s interest in genetically modified alfalfa, here.

A socially responsible corporation (of course) would recognize that Section 735 is not only unnecessary, but an act of egregiously bad public faith. That is because getting “preliminary injunctions” (to stop ordinarily lawful activity) is virtually impossible.

The burden of preliminary proof is so high, that plaintiffs almost never succeed in getting a court to put a stop to something, until after the whole case has been heard and the proof that very substantial harm is occurring is clear.

Note

For the legally minded, I explain the four legal requirements that plaintiffs have to surmount in successfully obtaining preliminary injunctions, here — in an essay about the USDA’s decision not to regulate genetically modified alfalfa.

If you read that article, you will see that the U.S. Supreme Court overturned a lower court’s injunction against GMO alfalfa because the lower court’s “enjoining” order had not met the burden of proof (of harm) that those elements require under American common law.

The burdens involved in obtaining preliminary injunctions are similar to those required in forcing a regulatory agency to begin regulating something that it has already decided not to. Courts resist overturning the expertise and scope of authority that Congress has granted government agencies.

So what was Monsanto trying to do with Section 735?

Save itself the expense of having to defend against even legitimate cases — while simultaneously continuing to rake in money from allegedly harmful activities.

Monsanto (and its kin) think that their profit taking is more important that the People’s right to go to court, and have judges act on their behalf, in cases in which GMO producers have almost certainly produced harm.

Think about the core of what Section 735 means, regarding public and environmental health

Section 735 says that, even if we almost certainly know that GMO activities are doing bad things, nobody can do anything about it until the USDA has competed a full-blown review. Which, like most things environmental, takes forever.

That’s a really objectionable reversal of American common and administrative law.

Will Section 735 go away when the resolution that it is attached to does?

Probably not.

I agree with attorney Michele Simon’s depressing analysis:

If there is any good news, it’s that the continuing resolution the provision hitched a ride on is only valid for six months.

But industry seems confident it can make the workaround permanent.

Likely what will follow is a protracted court battle over the policy’s constitutionality; remember that whole separation of powers thing?

Still, any such legal challenge will likely take years to be resolved. Even USDA thinks the provision is unconstititional.

Secretary Vilsack’s office told POLITICO that he has asked the Office of General Council to review the language, “as it appears to pre-empt judicial review of a deregulatory action which may make the provision unenforceable.”

Experienced lawyers know how many years can go by before the Supreme Court resolves issues of this kind.

How Monsanto et al. and Senator Blunt pulled this anti-democratic crap off

Perhaps most outrageous (since we expect scum to act like scum) is that the fact that Congress actually allows its members to insert such riders into pending bills anonymously. Do the harm, but don’t “man” up to it.

Senator Blunt got found out by good journalism.

But even more irritating, Section 735 passed with a heavy majority vote.

If we are charitable, we can assume that President Obama felt cornered and signed HR 933 into law because he couldn’t very well let the government run out of money.

Fait accompli.

The moral? — Congress is owned by plutocrats who will do anything, and harm anybody, to make money

Congress’ rules make it easy for its members to be bribed by:

(a) campaign contributions

and

(b) the prospect of enriching employment as corporate lobbyists, once their time in that increasingly putrescent body is done.

Senator Blunt, for example, is Monsanto’s boy:

According to OpenSecrets, Monsanto’s contributions to Blunt began in 2008 when the company gave the then-Representative $10,000.

Two years later, when Blunt ran for the U.S. Senate, the annual amount was upped to $44,250.

Last year, the penance increased yet again to $64,250.

During his 2010 Senate run, agricultural PACs in total gave Blunt over $243,000, documents reveal.

The unapologetic and representative Senatorial scumbag rides on.

PeteFree.com

Monsanto’s Reported Ability to Influence Senator Roy Blunt into Doing Its Dirty Work Exemplifies How Rotten Congress Is — Section 735 of the Newly Signed Appropriations Act (HR 933) Deprives the Judiciary of Its Power to Protect both Environment and Public Health against GMOs Gone Awry