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Date:

January 26, 2004

Subject:

Patent Nonsense; Containing Modified Reporting; Ecomyth - Challenging the Dogma of Greens; Innovation and Public Policy; Morally Bankruptcy; Talking to Patrick Moore

 

Today in AgBioView from www.agbioworld.org: January 27, 2004:

* GMO Patent Nonsense
* UK's Soil Association Claims on Herbicide Use in GM Crops
* 'Genetically Modified' Green Reporting Needs Containment
* Stooping to the Level of NGOs?
* Ecomyth: Challenging the Dogma and Ideology of the 'Green' Movement
* Env. Consequences of Alternative Crop Practices
* Biotechnology Research, Innovation and Public Policy
* Engineering Legal Risk Management Into Ag. Biotechnology
* Green Movement Is Morally Bankrupt
* Patrick Moore: Where the Environmental Movement Went Wrong
--


GMO Patent Nonsense

- Gregory Conko, BioScience News and Advocate, Jan. 28, 2004
http://www.BioSciNews.com/files/news-detail.asp?newsID=5963

One of the most contentious issues in the debate over GM crops and foods
is the existence of intellectual property protection and patents on GM
organisms and processes. Anti-biotechnology NGOs fret about a future
clouded by corporate control of agriculture, while even many biotech
supporters worry that intellectual property rights could prevent
resource-poor farmers in less developed countries from sharing the
benefits of the Gene Revolution.

Recent events, however, should help demonstrate why patents are not the
scourge they are sometimes made out to be. On December 22, 2003 and
January 16, 2004, the first three GM plant patents expired, reminding us
that only diamonds are forever; patents are just temporary.

The first GM plants were developed in 1982 and 1983 by four research teams
working independently – one at the State University in Ghent, Belgium, the
others in the United States. The European patent for that process was
granted to the Belgian team, and it expired in December. Two other
European patents, held by the biotechnology company Monsanto, expired on
January 16. And, over the next few years, many other important
biotechnology patents will expire in Australia, New Zealand, Japan, and
the United States, freeing those products and processes for use by anyone.

Of course, even technologies still under patent have been put to
productive use in less developed countries. Today, over 5 million
resource-poor farmers in South Africa, China, India, the Philippines and
elsewhere already happily grow nearly one-third of the world’s total GM
hectarage because they have higher yields, require fewer inputs and raise
income.

Additionally, public sector research labs are creating other products
specifically for farmers throughout the developing world, almost
invariably with access to patented technologies under liberal humanitarian
use exemptions. But these truths have never stopped anti-biotechnology
activists from arguing otherwise.

When Switzerland’s Ingo Potrykus and Germany's Peter Beyer invented a rice
variety with beta-carotene, they needed permission from several different
holders of more than 70 patents before they could begin testing their
Golden Rice in field trials. Critics continue to use this fact in their
campaigns against GM. What they repeatedly neglect to tell their
audiences, however, is that those patent holders did indeed grant Potrykus
and Beyer exemptions for Golden Rice.

Potrykus himself says that, while obtaining those exemptions was time
consuming, the primary reason Golden Rice and other bio-fortified crops
have not yet begun to help resource-poor farmers is not patents but
"regulatory obstacles based on undue paranoia." He has even argued that
"those who oppose GM technologies for political advantage or self-interest
[should be] held responsible for the unnecessary suffering of millions of
people with vitamin A deficiency," which Golden Rice could help address.

Of course, it's much easier for critics to blame capitalism and
intellectual property than their own fear mongering for the woes of
resource-poor farmers. But the reason this message is so compelling to so
many people is that patents are so commonly misunderstood.

The purpose of intellectual property is not, as is often believed, to
provide financial protection to those investing in product development or
to encourage research into new technologies. This is a valuable outcome of
patents, but it is not the primary goal. Rather, the chief purpose of
patent laws has always been to encourage the dissemination of information
so that new technological knowledge could be introduced into the public
domain more quickly.

To qualify for a patent, inventors must provide a written description of
the invention and the process used to make it so that any person skilled
in the field can reproduce the technology once the patent expires. This
"enabling disclosure" requirement is the root of all patent systems and,
combined with the financial rewards of intellectual property protection,
has tended to accelerate the movement of new technologies into the public
domain, not impede it.

Biotechnology’s critics and advocates alike would do well to remember
that, while the wealthy are often first to adopt new products, in time we
have all come to rely on once-patented technologies as varied as
automobiles and antibiotics. If we permit it, the whole world could in
time also benefit from GM foods.

---
Gregory Conko is a senior fellow with the Competitive Enterprise Institute
in Washington, DC.

**********************************************

UK's Soil Association Claims on Herbicide Use in US GMHT Crops

- Dr John D Pidgeon, john.pidgeon@bbsrc.ac.uk

1. If evidence of greater herbicide use is seen by the Soil Association as
a reason to ban GMHT (genetically modified herbicide-tolerant) crops, then
conventional sugar beet should immediately be banned in favour of GMHT
beet, where herbicide use is incontrovertibly lower. Consistent logic -
but not presumably the Soil Association's view.

2. Information, or misinformation on US maize herbicide use, is completely
irrelevant to consideration of UK sugar beet or oil seed rap.

3. A major reason for increased herbicide use in US GMHT crops is the
increase in No-till farming that is made possible. The Soil Association is
ideologically opposed to No-till farming despite the massive evidence
(accumulated) since the 1930's dust bowl problems in central USA) that
eliminating tillage is the single most important step in soil conservation
to reduce water and wind erosion, which occurs on a massive scale in large
areas of the world outside western Europe with vulnerable soils/climates.

No-tillage is an essential component in making agriculture sustainable
through preventing soil loss. More damage has been done to soils worldwide
in the C20th by tillage and overgrazing than any other factor. It is sad
to see the Soil Association Campaigning against this essential practice
for soil conservation and sustainability.

**********************************************

Genetically Modified Green Reporting Remains in Need of Containment

- Thomas R. DeGregori , Professor of Economics, University of Houston

The issuing of the NRC Report on the confinement of genetically modified
organisms raises a number of serious questions. So stated, I would like
for this posting to be considered an open letter seeking a response from
those below to whom I address the following questions.

First, let me say that the report itself had many positive elements to it
and repeatedly noted the potential benefits of transgenic organisms. They
also clearly stated that for many of them, most notably those already in
use, there is no threat to the environment (or to public health) and
therefore there was no issue of confinement to protect the environment and
biodiversity. One simply would not have known this from reading the press
accounts with the usual Green spin on the Report. I downloaded the report
and read it in its entirety.

The first news report by Justin Gillis in the Washington Post identified
Gregory Jaffe as "director of biotechnology programs at the Center for
Science in the Public Interest" (henceforth CSPI) which is further
identified as a "consumer group that supports genetic engineering in
principle but has often criticized federal oversight of it." Gillis goes
on to state that Jaffe "was one of the few people in Washington who read
the 219-page report before its official release." This latter statement
was later omitted in two different versions of the article that I found on
the Washington Post webpage.

This raises some interesting and maybe serious questions that I would like
to address to Justin Gillis.

Was there any particular reason why the reference to Jaffe having an
advance copy was omitted in later posting of the story? The quote from
Jaffe certainly sounds like someone who claims to know what is in the
report. If he had an advanced copy, should you have noted the fact that
his having "read the 219-page report before its official release" gave his
organization and the spin that it wished to put on the release an unfair
advantage over others whom you contacted who were denied copies of the
"embargoed" report? Your statement made it sound like he was the only one
who took the trouble to read it which made his misstatement of its
contents sound definitive and authoritative and allowed him to set the
framework for subsequent discourse on it.

Jaffe being described as the "director of biotechnology programs" for an
organization with the term "science" in its title, might lead some readers
to believe that he was a scientist while information on the web indicates
that he is a lawyer. If my checking on the web is correct, should not your
readers been so informed? As an investigative reporter for one of the
world's premier newspapers, do you have any evidence that CSPI has
actually ever supported any biotechnology endeavors or merely "claim" to
do so?

To Gregory Jaffe, I would like to ask whether or not he had an advance
copy and if so from whom did he obtain it and why was he given one while
it was denied to organizations that genuinely support biotechnology? If
Jaffe did not have an advance copy on what basis did he make the very
broad generalization "the science for creating risky organisms exists" but
the "sad conclusion from the report is that there really aren't any viable
bioconfinement methods that could be adapted commercially without
significant additional research and testing." Somehow, I have trouble with
the purported sadness as I do with the support in principle for
biotechnology. The report does find that a number of organisms,
particularly insects pose major problems of biocontainment. Jaffe, your
statement was very likely to be interpreted by the average reader as a
generalization about all transgenic organisms and therefore as one more
reason to oppose them. You as a paid propagandist should certainly be
aware of this very likely interpretation. In fact, I first received
numerous copies of the Gillis article in my inbox sent to me by Green
activists who thought it confirmed their worst fears.

To Kim Waddell, I would like to ask if to his knowledge advanced copies of
the report were made available to activist organizations but not to
pro-biotechnology groups? If so, why? If made available as a policy
decision, on what grounds was the discrimination made? If it was made
available without the NRC/NAS involvement, was this a willful violation of
the rules by one of the recipients? If so, are there any plans for more
effective "containment" of future reports? Or if the reports will
inevitably be leaked to some, should there not be a policy in place to
make it available to all?

I have further questions to Kim Waddell. This was a scientific report. To
this layperson, it seemed to have much merit but I will leave it to the
scientists on this newsgroup to comment on the quality of the science.
However, there was some very bad social science in it and I am wondering
whether those on the panel may have lacked the expertise to comment on
them in the same way that I lack the expertise to comment on the quality
of the their scientific findings. They looked and felt right but looks and
feelings can be deceiving so I will suspend further judgment until I hear
from others.

There were conclusions that I as a social scientist take issue with. If I
am riding on an airplane eating peanuts, there is the possibility that
someone near by (or at least that is what I have been told and believe)
might have an allergy and be harmed by the invisible "contaminants" that I
am releasing. There is a medically definable harm here. But when a farmer
is raising a GM crop in which there is normal pollen flow as has occurred
since the beginning of agriculture, on what basis can it be considered a
"contaminant" if it drifts over into the field of an "organic" farmer
simply because those who purchase the product demand 100% purity for their
product when there is neither evidence of any harm nor does it in any way
violate the rules defining the labeling of the product as "organic." (Alex
Avery might have more to say on this point?)

On what basis then was the report allowed to use the unscientific term
"contaminant" to describe this pollen flow and to define a need for some
policy of confinement? The implication is that if a farmer decides that
the higher price that "organic" produce can command is sufficiently
attractive to warrant becoming an "organic" grower, he or she can then
demand that all of the surrounding farms within possible range of pollen
drift no longer be allowed to use transgenic plants or engage in costly
containment efforts. This goes from granting a minority rights (which I
strongly favor) to one of tyranny of a minority as well as biasing
reasonable discourse by using terms like "contaminant" when it is totally
unwarranted. In my judgment the NRC/NAS report overstepped the boundaries
of its authority on this point in a report that I (once again as a
layperson) found to be very useful. One could make a similar analysis on
the Kow Towing to RAFI (now called ETC) on the issue on methods of
restricting reproduction which throughout the report the authors are
otherwise positive towards. Of course, on this point, RAFI's furious
campaign against the technology has had so many notable and worthy persons
and groups fall into line on this pseudo issue that one can not entirely
fault an NRC Report for joining such an illustrious choir.

My final question to Kim Waddell, is whether it is the responsibility of
the project director and NAS Board to provide oversight to see that a
report does not go beyond its authority and make value judgments for which
they have no particular expertise to make? This is a particularly
important question in this context because as Jaffe's comments (the first
person quoted in the Washington Post article) indicate, they will
immediately be politicized.

**********************************************

Stooping to the Level of NGOs?

- Response from a British Scientist who wishes to remain Anonymous

Ross ends with ....."be a combatant and a leader or be a casualty." which
is a popular cure-all previously proffered by other consultants looking
for fat client cheques. Those who were involved in the UK biotech
discussions in the mid '90s will recall that one American multi-national
WAS combatant in style, WAS a leader AND ended up a casualty.

Why should industry stoop to the level of NGOs when you are succeeding on
the basis of sound science and regulatory truth everywhere else in the
world? Perhaps the ACRE advisory committee members were recently
persuaded more by real farmers' experiences than scientists in white coats
- or their PR agencies? Thank goodness there are still some politicians
who recognise biotechnology is something you buy shares in, not boycott.

Remember pasteurisation and small pox vaccine?

> Global Moral War - Ross S. Irvine, Guest Editorial, Environment and Sustainability
> http://www.BioSciNews.com/files/news-detail.asp?newsID=5943
> Biotech businesses are unique in corporate history. They form the first
> industry to confront an unrelenting, unpredictable and information-rich

**********************************************

Ecomyth: Challenging the Dogma and Ideology of the International 'Green'
Movement

- Lance Kennedy; Dunmore Press, 2003, pp184, ISBN 0-86469-441-5; NZ$34.95
(US$24); Order at http://www.dunmore.co.nz or books@dunmore.co.nz

Is our ecology in crisis? Are we poisoning ourselves with GM foods? Is it
better to go organic? Are we drowning the globe in toxic chemicals? Will
global warming destroy life on Earth? What, really, should we do to feed
the starving millions, and save our forests and wildlife? Should we
discard modern technology and return to a simpler and more natural way of
life?

Lance Kennedy looks at these issues which are crucial to our future, and
using detailed and critical thinking, delivers a new, more optimistic,
message. Our planet is, in fact, prospering under the management of
21st-century science and technology: forests are expanding; wildlife is
multiplying; we are feeding more people more completely than ever before;
genetic engineering is not only safe, but brimming with potential to help
is build a better future; organic food is a con; synthetic chemicals are
safer than ever and global warming has been enormously exaggerated.

---
Note from the 'Ecomyth' author Lance Kennedy, New Zealand

Dear Dr. Prakash

This book is an attempt by myself to unveil a little scientific reality in
relation to environmental myths. About half of the book deals with GM
crops and foods, with organic food a related subject. I kept the book
short, to encourage people to actually read it. Feedback from those who
have, in fact, done so is good, with many people changing their views as a
result.

I am enormously frustrated by the current debate. On one side is a bunch
of people resembling Josef Goebbels and his propagandists, with no
inhibition at all in relating extravagant and misleading stories; even
total fabrications. On the other side are a number of highly ethical
scientists, unwilling to step outside strict science ethics. Thus, not
relating anything except exact scientific data, and admitting to every
element of doubt. The greens make mince-meat of them. It is like a boxer
entering the ring with both hands tired behind his back, meeting an
opponent with both hands free, equipped with knuckle dusters and chains.

We need debaters willing to generalize a little, rather than expanding on
ares of doubt and uncertainity, and to argue the case with real passion.
We need the willingness to draw conclusions, and point out with real foce
the likely damage the irrational propagandists are like to cause. I hope
to be able to make a contribution here,

Regards, Lance Kennedy

===

A follow-up note again from Lance Kennedy

I have been following the discussions on AgBioView as well as from other
sources, and really appreciate the proper scientific perspective.

Perhaps half of Ecomyth is about genetic modification. I doubt there is
anything in this section you would disagree with. I have avoided technical
detail, in the hopes of making it readable, and concentrated on aspects
related to safety (100% safety record!), and the enormous potential to
re-make the world into a better place, with special emphasis on what the
technology can do for the poverty stricken in third world nations. The
section on GM food leads into the greenie alternative - organic food.

I attempt to make it clear just what a gigantic fraud this entire industry
is. A British survey of organic food buyers reveals that 75% make their
food choice based on the mistaken belief that 'organics' will be
healthier. However, there is little or no objective evidence to back up
such claims. Indeed, much data suggests added risk, rather than healthier
eating. The book then flows into other food fads, and associated con jobs.

The fear of chemicals and a better scientific perspective on this 'risk'
forms the chapter called Chemophobia. In the chapter on conservation,
principles are discussed, with the intent of directing the reader to
actions based on solid evidence, rather than those centred on superstition
and dogma. The final chapter discusses the global warming furore. While
there is no doubt that we are currently in a warming climatic cycle, there
is real reason to doubt the catastrophic predictions of those whose
careers depend upon dramatic declarations to boost their own importance.
Computer climate models and reality differ substantially, and the good
science thinker will always go with real measurements of the world, rather
than that of any virtual environment.

**********************************************

Environmental Consequences of Alternative Practices for Intensifying Crop
Production

- P.J. Gregory et al., Agriculture, Ecosystems and Environment, 2002,
88:3:279-290

The increasing global demand for food will be met chiefly by increased
intensification of production. For crops, this will be achieved largely by
increased yields per area with a smaller contribution from an increased
number of crops grown in a seasonal cycle. Production systems show a
spectrum of intensification practices characterised by varying methods of
site preparation and pest control, and inputs of germplasm, nutrients and
water.

This paper highlights three main types of intensification (based largely
on the quantity and efficiency of use of external inputs) and examines
both the on- and off-site environmental consequences of each for soils,
water quantity and quality, and climate forcing and regional climate
change. The use of low amounts of external inputs is generally regarded as
being the most environmentally-benign although this advantage over systems
with higher inputs may disappear if the consequences are expressed per
unit of product rather than per unit area. The adverse effects of
production systems with high external inputs, especially losses of
nutrients from fertilisers and manures to water courses and contributions
of gases to climate forcing, have been quantified.

Future intensification, including the use of improved germplasm via
genetic modification, will seek to increase the efficiency of use of added
inputs while minimising adverse effects on the environment. However,
reducing the loss of nutrients from fertilisers and manures, and
increasing the efficiency of water utilisation in crop production, remain
considerable challenges.

**********************************************

Biotechnology Research, Innovation and Public Policy

- Center for Strategic and International Studies
http://www.csis.org/tech/Biotech/index.htm#2

"The consequences and power of science, both useful and harmful, are too
important to be ignored by government, yet science and statecraft lie in a
unresolved crisis." - Joshua Lederberg, Nobel Laureate and CSIS Advisor

For four decades, the Center for Strategic and International Studies
(CSIS) has been dedicated to providing world leaders with strategic
insights on -- and policy solutions to -- current and emerging global
issues.
The CSIS Biotechnology and Public Policy Initiative aims to bring clarity
to matters where science and policy intersect and to design governmental
processes and institutions to help ensure the benefits and avoid the
dangers of science and technology.

The Biotechnology Initiative's broad purposes are -- * To enlighten public
policy affecting the nation's research, innovation and commercialization
capabilities; * To design strategies to help ensure the economic and
social benefits that biotechnology may confer in the United States and
globally, and * To inform the public debate relating to biotechnology.

The Council on Biotechnology Research, Innovation, and Public Policy - an
interdisciplinary group comprising leaders from science, law, ethics,
government, economics, media, business and finance - helps guide program
development.

--
Frontier Plant Biotechnology: Advancing Crop Productivity and Market
Potential

- February 5, 2004, Washington DC

The Howard Hughes Medical Institute (HHMI) and the Center for Strategic
and International Studies (CSIS) invite you to attend a February 5, 2004
luncheon seminar exploring frontier plant biotechnology. Speakers will
discuss how knowledge derived in academic and industrial laboratories is
leading to the development of crops with enhanced productivity, nutrition,
and pharmaceutical and industrial uses.

A special focus will be challenges associated with moving laboratory
research breakthroughs into the marketplace - conflicts of interest,
intellectual property rights, venture capital requirements, legal and
other technology transfer complexities.

Speakers will be: Dr. Daphne Preuss - HHMI Investigator and University of
Chicago Professor who developed Chromatin's mini-chromosome technology and
founded the company; Dr. Mich Hein - CEO of Chromatin, Inc, a company
developing and marketing technology that enables entire chromosomes to be
designed and incorporated into plant crops.; Dr. Anthony J. (Tony)
Cavalieri - former Vice President & Director, Trait & Technology
Development, Pioneer Hi-Bred International, Inc., a DuPont company.

Please join us for this session on Thursday, Feb. 5, 2004 in the Hart
Senate Office Building, Room 902. Lunch will be served. If you would like
to attend, please RSVP by email to with your full contact information.

**********************************************

Engineering Legal Risk Management Into Agricultural Biotechnology

- Thomas P. Redick, Legal Backgrounder, Washington Legal Foundation
Advocate for freedom and justice; Vol. 19 No. 2 Jan. 16, 2004; Excerpts
posted with permission. Full Document at
http://www.wlf.org/upload/1-16-04-reddick.pdf

Agricultural biotechnology’s first "mass tort" has worked its way through
various courts through multiple class actions and individual claims that
growers and consumers filed against Aventis Crop Sciences, Inc. (and its
successor-in-interest, Starlink Logistics, Inc.).

Starlink corn was genetically engineered to resist pests and herbicide,
but its legal protectors did not engineer sufficient protection from class
action attorneys. While Starlink corn, like all biotech crops produced in
the U.S., was subject to extensive federal regulation and voluntary
industry-wide monitoring for any risk of human injury (risk management far
beyond the level of care given to other plant breeding methods), Starlink
corn nevertheless caused a billion dollar loss almost entirely from claims
for economic loss.

The recall of Starlink corn led to a surprisingly broad reading of
nuisance law by a U.S. District Court in July 2002, recognizing a claim
for a nationwide economic "public nuisance," which in turn led to a $110
million court-approved class action settlement for corn growers around the
U.S. The first part of this Legal Backgrounder will discuss the novel
precedent created by this District Court and suggest that improved
containment ("stewardship" or "identity preservation") will be required to
protect grain prices from future compensable economic impacts.

The second part will discuss "anticipatory nuisance" as a tool for
imposing improved stewardship on a careless biotech company. Starlink
Corn’s Seminal "Public Nuisance" Decision. It is nearly three years since
Starlink corn was first discovered in taco shells in the fall of 2000 by
activists armed with genetic tests (PCR tests) that detected the unique
genetic sequence of Starlink corn.

The economic impacts are still rippling through the corn belt from this
corn, which could resist both insects and herbicide but could not legally
be commingled with food. After this problematic protein was found in
various foods, an EPA Advisory Panel recommended a near-zero tolerance for
it. The EPA overruled the request that Aventis made for a reasonable
tolerance for Starlink corn. A massive recall of food and grain ensued.
Given the massive economic impact of the EPA-mandated recall of Starlink
and given the problematic stewardship of Aventis and its agents, Starlink
corn will yield a harvest of legal precedents.

The most troubling precedent is the decision allowing nationwide "public
nuisance" class actions compensating growers for economic impacts. In
denying Aventis' motion to dismiss various claims in In re Starlink Corn
Products Liability Litigation, 212 F. Supp. 2d 828 (N.D. Ill., 2002),
Judge Moran allowed plaintiffs to allege that Starlink corn could be a
nationwide "public nuisance." While public nuisances are usually subject
to injunctions to stop the harm, each of these individual class action
plaintiffs was paid compensatory damages for alleged nationwide impacts to
corn prices. Within months of this ruling, the plaintiffs (nearly all corn
growers nationwide) settled for up to $110 million, with notice given to
thousands of corn growers who lost money due to depressed corn prices.

This seminal "public nuisance" precedent could define the future
marketplace for all crops produced using recombinant DNA ("biotech crops")
that lack regulatory approval in any significant marketplace, including
biotech crops lacking approval in overseas markets (which may impose
unreasonably low tolerances for varieties of biotech crops lacking
regulatory approval). In an age when readily foreseeable economic loss
could increasingly be caused by overseas trade barriers to unapproved
biotech crops, the Starlink precedent could exert a profound chill on
innovation in agricultural biotechnology. Class actions seeking
compensatory damages for economic loss could become common place.

The EPA’s near-zero tolerance stance in the Starlink corn recall, combined
with the Starlink decision allowing nationwide "public nuisance" class
actions, could break fertile new ground for future nuisance lawsuits.
Before the Starlink decision, lawyers representing biotech industry
clients contended that this "public nuisance" claim was unprecedented,
since it sought compensation for interference with corn markets. Starlink™
corn, like other "unapproved-overseas" varieties of biotech corn lacked
regulatory approval in major export markets ("unapproved-overseas"
varieties of biotech crops).

If "unapproved overseas" biotech crops commingle through negligent
stewardship, they may cause economic loss that is compensable in the
post-Starlink era. Recognizing a claim for public nuisance in the case of
Starlink could readily lead to public nuisance claims against biotech
crops lacking regulatory approval overseas. In both cases, the commingling
of the biotech crop causes economic loss after careless handling leads to
foreseeable, readily prevented commingling with crops bound for export
markets.

After the Starlink decision, Sheila Birnbaum, the attorney defending
Aventis, correctly identified these compensatory "public nuisance" claims
as being based upon "very novel tort theories." Andrew Harris, Danger
Uncertain, But Suits Multiply, NAT’L LAW J., Sept. 9, 2002. The court
treated channels of grain commerce as if commingling grain had blocked a
public thoroughfare. Since grain flowed from various tributaries (farms,
elevators, etc.) and grain shipments were blocked at overseas ports due to
commingling of Starlink corn, like a river of grain that is blocked by a
negligent act, the court apparently saw ample room in vague nuisance
precedent to apply public nuisance law to this commingling incident.
Starlink corn’s legal impact may be fleeting -- this precedent arose from
a motion to dismiss public nuisance claims. This motion was denied by a
federal district court in a case that settled shortly thereafter. No
appeal was taken to establish this as precedent at the level of a federal
Circuit Court of Appeals, so it remains merely persuasive, not
dispositive, District Court precedent.

Fortunately, however, Starlink’s legal precedent in public nuisance
provides responsible biotech companies and growers associations with a
solid legal foundation for insisting upon strict identity preservation for
varieties lacking overseas approval. For the next few years, agricultural
biotechnology companies will have to perfect the uncertain art of
containing unapproved biotech crops in closed-loop production systems. For
the biotech industry to play its inevitable, necessary role in
agricultural production (including production of industrial or
pharmaceutical compounds), the threat posed by class actions seeking
compensation for economic impacts must be neutralized. If U.S.
agricultural biotechnology industry can contain each problematic
"unapproved" variety, it will prevent the recurrence of this troublesome
legal novelty. If class action settlements for other biotech crops begin
to be reported, however, investors will flee life sciences companies.

In addition to the European Union, which has held U.S. corn since 1997 due
to commingling of certain unapproved biotech varieties, there is a new
international treaty, the Cartagena Protocol on Biosafety, which could
raise new trade barriers as nations struggle to comply with its terms, and
grain exporters take steps to avoid having ships turned away due to the
presence of traces of unapproved biotech crops. See, Convention on
Biological Diversity Website, text of Cartagena Protocol on Biosafety,
http://www.biodiv.org/biosafety/protocol.asp.

Conclusion.
The Starlink decision created novel tort precedent which should be
contained by coordinated biotech industry efforts to ensure that no new
bad facts arise to make more bad law. Fortunately, the Starlink corn
debacle also provides the key to negotiating solutions to future threats
posed by biotech crops, using the threat of injunctive relief to persuade
a biotech company to undertake enhanced stewardship.

A coordinated strategy between growers and biotech companies is needed to
prevent both: (1) economically cataclysmic impacts and (2) devastating
legal precedents that could cede control of our biotech industry’s future
to plaintiff’s class action attorneys. The Starlink court’s treatment of
the entire marketplace as a public thoroughfare, creating a public
nuisance that can be compensated through payment of damages, is a truly
novel and innovation-threatening extension of nuisance doctrine. Starlink
corn clearly disrupted this public "thoroughfare" in the global grain
marketplace, causing a public nuisance that caused damages to individual
growers through a decline in the price of corn.

The economic threat posed by biotech crops to the marketplace, however, is
vastly outweighed by the threat to the agricultural biotechnology industry
from this novel legal development. In other words, the economic impact
upon the U.S. economy and the world from the threatened loss of future
innovation in agricultural biotechnology is a cataclysm well worth
avoiding, through careful legal planning and cooperation.

--
Thomas P. Redick is a member of the law firm Gallop, Johnson & Neuman,
L.C. in St. Louis, and chair of the Agricultural Management Committee for
the American Bar Association’s Section on Environment, Energy and
Resources. He has represented the American Soybean Association on
liability issues relating to biotech crops, including the Liberty Link
soybean negotiations.

**********************************************

Green Movement Is Morally Bankrupt

- Roger Bate, Business Day (South Africa), Jan. 27, 2004

The view most people have of colonialism and imperialism is largely
negative. So any charge that a group, individual or government is guilty
of them is bound to be resisted strongly by the recipient.

Recently, in New York City, a broad charge of eco-imperialism was laid at
the feet of the environmental movement. The Congress of Racial Equality
(Core ) blames government officials, aid agency bureaucrats as well as
sandal-wearing greens for mass disease and death in the poorest countries
of the world because they export their most vile regulatory policies.

According to Greenpeace co-founder Patrick Moore: "The environmental
movement has lost its objectivity, morality and humanity". Last week he
said: "The pain and suffering it inflicts on families in developing
countries can no longer be tolerated." So far the green movement has
ignored the criticism, but it will soon have to respond, since
"eco-imperialism" is becoming a more widely heard, if not yet fully
appreciated, term. Read on at
http://www.businessday.co.za/bday/content/direct/1,3523,1528632-6096-0,00.html


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Q & A with Patrick Moore: Where the Environmental Movement Went Wrong

- Monthly Planet, Oct. 2003 www.cei.org

'A Founder of the Environmental Movement on the Movement’s Achievements,
Where It Went Wrong, and How Common-Sense Solutions Can Help Bring About A
Cleaner Environment'

As a co-founder of Greenpeace, Dr. Patrick Moore is one of the godfathers
of the modern environmental movement. However, since the mid-1980s, he has
become critical of the movement’s direction, especially its commitment to
confrontational tactics. Since leaving Greenpeace, Dr. Moore has focused
on looking for consensus-based solutions to environmental problems. In
1991, he founded Greenspirit (www.greenspirit.com), a consultancy focusing
on environmental policy and communications. In 2000, he published Green
Spirit: Trees Are the Answer, a photo book that illustrates how forests
work and how they can play a role in solving the world’s energy problems.

CEI: Which did you consider the greatest threat to the environment when
you helped found Greenpeace? Which trend or event convinced you that the
organization you co-founded had been taken over by extremists, and what
prompted you to finally leave it?

Patrick Moore: Greenpeace evolved in the late 1960s and early 70s because
of concern over nuclear testing and the threat of nuclear war.
Greenpeace’s first campaign was a voyage from Vancouver to Alaska to
protest U.S. underground hydrogen bomb testing in November of 1971. We did
not stop that test, but it was the last hydrogen bomb ever detonated. In
retrospect, we felt that because this had happened at the height of the
Cold War and Vietnam, it was a major turning point in the global arms
race, and we had been directly involved.

In June 1985, the Rainbow Warrior was bombed by French commandoes in
Auckland Harbor [New Zealand]. I happened to have been on the boat that
day but was not a crew member. I was an international director visiting
and welcoming the boat. It was on its way to a protest against French
testing. The commandoes bombed it, sinking it and killing a photographer
on board. That became a pretty big international incident. But it was
also about that time that I was moving away from Greenpeace. The parting
of ways occurred partly because I had become aware of the concept of
sustainable development--or sustainability--when I attended a meeting in
Nairobi that marked the 10th anniversary of the Stockholm Environment
Conference, in 1982. That’s where I first heard this term, sustainable
development. Over the next few years, I came to realize that this was the
next logical step. My transition at that time was from the confrontation
approach to the consensus approach, from environmental activism to
sustainability.

At the same time, Greenpeace was beginning to adopt positions that I felt
were too extreme and not based on science. The very first issue that came
along those lines was their opposition to aquaculture. We had been
campaigning on all sorts of marine issues: to end whaling, to prevent
dolphin killing, and to end driftnet fisheries and deep sea trawlers. We
had been against many different types of things, and personally I saw
aquaculture as sustainable development that we could be in favor of. It
seemed to me that sustainable aquaculture was a solution, whereas
Greenpeace has more or less to this day remained opposed to many forms of
aquaculture. I think they are way off base. First World environmental
activists are campaigning against shrimp farming in Bangladesh, where
hundreds of thousands of people depend upon it for their livelihood.

CEI: You’ve noted that, "Sustainability is very much about what it is we
want to sustain rather than some absolute or ideal state of being," yet
many environmental activists today pursue such an "absolute or ideal state
of being" with a quasi-religious fervor. What do you think motivates this
mindset?

Moore: Ideologues have always been like that. Sustainability is not a
Utopia or Garden of Eden. Sustainability is a work in progress, and we
will always be attempting to move closer to a sustainable state. As I said
in my book, nothing is sustainable indefnitely. Even the sun, our main
source of energy, will burn out one day. If you become more humble when
using this term, you start thinking in terms of 50 to 100 years rather
than in two months or a year.

I find it difficult to accept the environmentalist movement's antiwood,
anti-forestry policy. Trees are among our most abundant renewable energy
resources. Environmental activists say they’re in favor of renewable
energy, just not trees and hydro-dams, which together account for 95
percent of renewable energy in the world. The environmentalists like
photocells, but I view them as expensive roofing tile. They would have us
tear down dams and stop cutting trees, which would push us toward more
toward fossil fuels and more CO2 emissions. Their policy on forestry is
logically inconsistent with their policy on climate change and renewable
energy.

CEI: You’ve said that, today, the environmentalist establishment has
become trapped by its own devotion to confrontation as a tactic, which has
led them to adopt extreme positions as their more sensible proposals have
gained wide public acceptance. What examples would you give of both
environmentalist positions that have become so mainstream that we don’t
notice them anymore and extreme positions that green activists push today,
but which aren't based on science?

Moore: Reduction of toxic materials and waste streams going into water and
air. No one argues that it is OK to put toxic waste into rivers anymore.
On the other hand, our detection methods have become so sophisticated that
we must accept the fact that low levels of nearly everything are going to
be found everywhere. Dioxin is a classic example. Dioxin is produced both
through natural phenomena, like forest fires, and also through industrial
processes, like steel recycling. It is, therefore, ubiquitous. You can
find dioxin in practically every food product we eat, especially meat, as
it accumulates in fat. You can find dioxin everywhere in the world, from
the polar ice caps to the equator; therefore, some people take that as
evidence that we are destroying the planet. The more logical analysis is
that dioxin is naturally occurring. Any time something organic burns,
dioxin is created. Humans have drastically reduced the amount of
anthropogenic dioxin emissions by making incinerators more efficient.
There is the issue of getting things in perspective and recognizing that
the poison is in the dose and that the word "toxic" is relative.

What I really see as the problem is the fact that the environmental
movement has become very propaganda-oriented. If you take a term used
quite frequently these days, the term "genetic pollution," otherwise
referred to as genetic contamination, it is a propaganda term, not a
technical or scientific term. Pollution and contamination are both value
judgments. By using the word "genetic" it gives the public the impression
that they are talking about something scientific or technical--as if there
were such a thing as genes that amount to pollution. They use it in terms
of GM and in their anti-salmon farming and anti-aquaculture campaigns. If,
for example, a fish escapes from a farm and interbreeds with a wild fish
of the same species, they call that genetic pollution, and yet they don’t
realize that what they are saying in terms of science would be the same
thing as saying that if a white person married a Chinese person, that
would be genetic pollution.

The primary signature of propaganda is to take a word that was previously
an objective descriptor--a term like "clear cut," as it is used in
forestry, meaning that you cut all the trees down in a certain area--and
you load it up with all sorts of negative associations like devastation,
desecration, sacrilege, end of virginity. A very similar word like
clearing--a clearing of the forest--has a positive connotation. Another
example is GM. It is a very descriptive, objective term, but when you
attach to it such terms as "Frankenfoods," "killer tomato," and
"terminator seed," you are basically trying to make it so that when people
hear GM, the "scary" part of their brain comes on.