Posted: 14 Apr 2013 09:00 AM PDT By Susan Schneider of the University of Arkansas School of Law:
Section 735 of the bill – now known as the “Monsanto Protection Act” was one of several unrelated “riders” that were tacked on to the appropriations bill in the Senate. It’s inclusion prompted a firestorm of criticism about the ability of powerful industries to influence the government and provoked numerous write-in campaigns.
The text of the now infamous provision is as follows:
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.
Unpacking the legalese, the provision applies in a situation where the USDA has approved a genetically-engineered crop by granting it “non-regulated” status, but a federal court finds that it is likely that the USDA action was inappropriate or at least premature under the applicable federal statutes. In this situation, a court would ordinarily have the authority to decide whether or not to issue a temporary injunction that would essentially stop the effect of the agency action until the case was resolved. Section 735 provides that regardless of what the court holds, the USDA must immediately grant any farmer’s request for “temporary permit(s) or temporary deregulation” to “authorize the movement, introduction, continued cultivation, [and] commercialization” of the product.
In a previous post, I expressed my personal views on the genetic engineering debate, Thoughts on the Regulation of Genetically Engineered Food Products.
My comments here on Section 735 relate directly to process, the checks and balances built into our legal system, and the danger of using inappropriate means to achieve political ends.
Checks and Balances: The Authority of the Courts
The ability of the federal courts to review the actions of administrative agencies such as the USDA is a fundamental component of the checks and balances that make up our legal system.
Consider, for example, the Administrative Procedure Act (APA), 5 U.S.C. § 501 et seq., the hallmark of U.S. administrative law since it was enacted in 1946. The APA specifically sets up a process for U.S. federal courts to directly review agency decisions, determining whether they are “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law.”
Any law that interferes with the ability of a court to enjoin an agency action that is unlawful disrupts the careful balance of our legal system. If a federal court determines that the law has been violated with respect to the approval of any new product or substance, that court should have the ability to enjoin the release. Any decision regarding the balance of harm and injury that might be caused by an injunction should be left the authority of the court. To deny the court this authority is to completely undercut the review process.
An Offense to the Legislative Process
Congress’s practice of slipping unrelated provisions into massive appropriations bills is not new. But, it is a practice that should be severely limited. The facts that underlie the enactment of Section 735 provide a bold and egregious example of a process gone awry.
Section 735 was anonymously slipped into the bill during committee. Senator Mikulsi, chair of the appropriations committee was initially blamed for the inclusion, but she denied involvement. The Baltimore Sun reported that she “understands the anger over this provision. She didn’t put the language in the bill and doesn’t support it, either.” Mikulski says she doesn’t support ‘Monsanto rider’ in funding bill.
Lawmakers on both sides of the aisle disavowed any knowledge of Section 735 despite the fact that Senator Tester, joined by Senators Boxer, Gillibrand and Leahy attempted to delete Section 735 by amendment. They were unable to obtain a vote on their amendment. Senator Tester’s impassioned plea to reject Section 735 on the Senate floor has been reprinted in a number of blogs. See, e.g., Natural Capital by Duncan Gromko, Section 735 of the 2013 Appropriations Act: AKA The Monsanto Protection Act.
Eventually, Politico reported that Senator Roy Blunt from Missouri owned up to having authored Section 735 and other ag-related riders. Big Agriculture Flexes its Muscle, by David Rogers. After the fact, lawmakers argued that they had no choice to pass the entire bill, including Section 735, or risk government shutdown.
To understand the public’s reaction to this type of Congressional shenanigans, one needs only watch the Jon Stewart Daily Show discussion of this issue. It’s the first segment in the episode available here on hulu, The Daily Show with Jon Stewart, April 3 and is embedded below. Does anyone need wonder why public approval ratings for Congress are so low?
The Dangers of Using Inappropriate Means to Achieve Political Ends
Consider the far reaching powers of administrative agencies. Environmentalists and anti-regulation advocates alike have both used the authority of the courts to challenge agency action.
In this case, the provision that undercuts the authority of the court is favored by many in the biotechnology industry and opposed by those who seek additional regulation. The tables could easily be turned. Consider an effort to challenge a regulation or to seek court action to stop an agency from regulating any activity. Should Congress be allowed to pass a law that would hamper judicial authority and force the agency to continue with its challenged activity while the matter is tied up in court?
The ability of a court to decide a particular matter, including the issuance of a temporary injunction, on the merits of the case is not a matter with which Congress should interfere. Particularly when Congress is unable or unwilling to openly debate the matters that it passes into law.