During recent negotiations on the continuing budget resolution, farm state senators included a “Farmer Assurance Provision” rider, which critics have derided as the “Monsanto Protection Act.”

The provision codifies existing USDA practices and elements of a 2010 Supreme Court ruling that lower courts should not automatically prohibit the planting of biotech crop varieties, or the harvest and sale of biotech crops already planted, when their commercial approval is revoked for procedural reasons. Activists have mischaracterized the rider’s actual effect and have called on Congress to have it terminated.

“Section 735 of the Senate appropriations bill/ CR (continuing resolution) contains language to provide some predictability and assurance to farmers who plant biotech crops that have already been deregulated by USDA but are then subject to litigation by anti-biotech activists. The language in the CR was included in the House Agriculture Appropriations bill during the 112th Congress and has, therefore, been in the public domain for a number of months,” noted Richard Gupton, Agricultural Retailers Association, senior vice president of public policy and counsel.  

Gregory Conko, a senior fellow at the Competitive Enterprise Institute, issued a statement that is quite critical of the protesting activists trying to stir up consumers who aren’t knowledgeable about agriculture or production of biotech crops. CEI is a nonprofit, public interest group that strongly supports free enterprise.

“For close to a decade, activists have used nuisance litigation to overturn the approval of biotech crops on the grounds that the U.S. Department of Agriculture improperly documented its evaluation of potentially negative “environmental” effects. Because the National Environmental Policy Act requires agencies to consider and fully document not only ecological impacts, but also any possible economic, social, cultural, historic and aesthetic effects, it offers fertile ground for bad-faith, obstructionist lawsuits for what amounts to mere paperwork violations.

“In the five NEPA lawsuits against biotech crop approvals filed to date, not a single harm to consumers or the environment were even alleged, let alone proved. So, activist claims that the rider lets USDA ignore a court finding of environmental harm are patently false. In fact, the rider only authorizes USDA to grant “temporary” permission for biotech crops to be planted, and only “subject to necessary and appropriate conditions … and requirements, including measures designed to mitigate or minimize potential adverse environmental effects, if any,” until the USDA’s paperwork irregularities have been corrected.

“Furthermore, the rider does not give USDA any new authority, since the department previously had issued exactly the same kind of temporary permits for farmers to grow biotech seeds they already had purchased. And in the 2010 case Monsanto v. Geertson Seed Farms, the Supreme Court ruled that courts should not automatically revoke a biotech crop’s approval when NEPA violations are found. So, all the Farmer Assurance rider does is codify existing case law and agency practice,” Conko wrote.

He further noted that the rider wasn’t slipped into the continuing resolution surreptitiously. Discussion within Congress has occurred off and on including during negotiations on the farm bill, and even provisions to give farmers even more rights related to planting biotech crops were discussed.

Conko’s added, “Given how abusive NEPA litigation has gotten and how disruptive these rulings are to farmers and the American food chain, enacting the Farmer Assurance Provision is the very least Congress should do to protect American agriculture.”