Sunday, November 22, 2009

Sticking it to the "Mon" ... Santo, that is

Corn Dusk, originally uploaded by Dodo-Bird.

You can have your fantasy football teams, but I'd rather spend a lazy Sunday laying the groundwork for a fantasy class-action suit that's been knocking around in my head. This fantasy suit of mine pits innocent and hardworking farmers against the greedy, multi-national agricultural companies that sue farmers who save and replant their own seed into permanent submission, and instead force them to purchase their patented, genetically modified products. The source of my defense actually comes from a small section of environmental law meant to pertain to real estate: the innocent landowner defense of the Comprehensive Environmental Response, Compensation, and Liability Act (better known as CERCLA).

CERCLA is a massive piece of legislation; I took a semester-long class that focused only on the innocent landowner (and contiguous property owner) defense within CERCLA, and we only just scratched the surface. The focus of the class was on conducting site assessments for potential purchasers of industrial real estate, but with my brain working the way that it does, the potential implications outlined in this defense gave me another idea.

Let me preface my fantasy class action by saying that I am not a lawyer. I'm not shouty or argumentative, I can't talk in circles, and I detest legalese, which means that I will probably never be a lawyer, because I would be lousy at it. Nor am I a farmer, I just sympathize with those land stewards who are trying to stay afloat in the seriously messed up, over-subsidized and overpriced crop monoculture that is big agriculture in this country. I first became aware of the shady, underhanded dealings of these multi-national corporations-- who have crossed a moral and ethical line by genetically modifying crops and obtaining patents not only for the seeds but for the crops they produce-- through documentaries and books such as The Omnivore's Dilemma, Food, Inc. and The Future of Food.

Each of these resources acts as an exposé into the seedy dealings of these seed businesses, who make the purchasers of their seeds sign over their souls, while going after the farmers who don't want to do business with them and suing them for saving their own seed. Of the farmers who chose to fight Monsanto in court, the few who didn't immediately submit to the settlements (on the condition of silence) and start purchasing Monsanto's "cutting-edge biotechnology" wound up losing millions before eventually losing their lawsuits. These companies are simply too rich and too powerful for individual farmers to take on... hence the need for a class action!

A number of farmers spoke out against Monsanto's practice of sending out "investigators" to bully and intimidate farmers whose properties were adjacent to their customers' farms into buying their products as well, an action Monsanto at once denies then claims is at their customer's insistence. Although these persecuted farmers came from all over the continent, their stories were all pretty much the same. Monsanto tested their seed, supposedly found their patented technology, and took these farmers to court. Monsanto has a number of articles denying these claims on its website, and boasting that the validity of their patents on living organisms was reviewed and upheld as recently as 2007 (patents come up for review every 20 years or so-- this is not good news!) They also cite specific cases against the farmers who were brave enough to speak up, listing all the reasons why the farmer-- and not their corporation-- is in the wrong.

So who are we to believe? A greedy, international corporation that is raking in record profits and steering this country into another dust bowl era, or a nation of beleaguered farmers who just don't have the resources to fight the good fight? I can't say for sure... but in case you couldn't tell, my allegiance is with the farmers.

I will concede that there are a couple of factors that complicate my argument. First, we have to establish that Monsanto's patented, genetically modified seed is a contaminant and-- more specifically for the CERCLA defense-- a hazardous substance. Non-GMO farmers certainly consider even trace amounts of Monsanto's patented technology that appear in their carefully saved, cleaned, and stored seed to be a contaminant, because it's not wanted! In this legislation, a hazardous substance is defined as, "...such elements, compounds, mixtures, solutions, and substances which-- when released into the environment-- may present substantial danger to public health and welfare or the environment." While Monsanto's seed in and of itself isn't a hazardous substance, the effects of eliminating biodiversity and monopolizing the agricultural industry is an environmental hazard, and the ridiculous surplus of corn and other grains grown in this country each year does pose a danger to public health and welfare in that food scientists keep finding new and sugary ways to get us unsuspecting consumers to eat (and drink!) more and more of this stuff. Furthermore, I don't think it would be too hard to make a connection to the obesity epidemic and the increased consumption of corn-based foods; in fact, some of the resources listed above already have! And second, we'd have to find a way to hold our own against the scores of shouty, argumentative, legalese-loving lawyers employed by Monsanto, whose sole job would be finding ways to prove us wrong.

In the case of chemical contamination, liability can be difficult to prove, especially if the original contamination source is not located on the property in question. This makes it hard for current owners/operators and prospective buyers of the land in question to qualify for the innocent or contiguous landowner defense, and even when they do, there is still no guarantee that they will be exempt from liability. As for my argument against this biological contamination, however, Monsanto's coveted patents would make it incredibly easy to trace, identify, and prosecute(!) the responsible parties. The CERCLA legislation is one of the few environmental policies that actually has any teeth and-- like most tax laws-- is designed in a way that makes any potentially responsible parties "guilty, until proven innocent". And the best part about CERCLA is that it's retroactive; even if these corporations can get away with these shenanigans now, if Congress comes to their senses at some point in the future and repeals the right to patent seeds, these corporations will be liable for contamination that occurred before and after these changes are made!

Without getting too much into the due diligence of the matter-- which really only pertains to potential buyers-- for the sake of my argument, I'm going to say that the farmers owned their properties before the contamination source appeared. Assuming due diligence has been proven, the imaginary farmers I'm representing would have to meet certain conditions to qualify for the innocent landowner defense, such as:

  • The contaminants migrated onto their land from other properties despite due care. The most likely cause of seed contamination is by cross-pollination of the innocent farmers' crops with genetically modified crops from neighboring farms. There is a clause in the innocent landowner defense (I don't remember which one, and will only look it up if somebody really wants to know... I'm not a lawyer, remember?) stating that landowners cannot be held responsible for contamination that occurred as a result of an act of nature.
  • They have no knowledge of/no reason to suspect contamination. Unfortunately, this would eliminate any farmer who plants even a portion of their fields with patented seed; basically, once you sign Monsanto's "seed steward" agreement, they pretty much own you whether the seed in question is theirs or not. Also, if the purchaser "contributes" to the contamination, the I.L.D. cannot be applied. But innocent farmers cannot be held responsible for unknowingly "violating" an agreement that their neighbors made with a seed company!
  • They acquired either the land (or, in this case, the contaminated seed) through inheritance or bequest. One of the cases Monsanto describes on their website involves contaminated seed given to a farmer by a relative. Even without my fantasy defense, Monsanto was unable to prosecute the innocent farmer to the extent that they would have liked.

Even if my class-action farmers were able to qualify for the innocent landowner defense, they would still probably have to make a "contribution" to the EPA toward the remedial actions necessary to remove the contaminant from their seeds. Under CERCLA, the current owner/operator of the land in question is automatically considered a potentially responsible party. In the case of "strict" liability, the farmer would likely be stuck with the cleanup costs. So we'd be pushing for "joint and several" liability, where the EPA examines all PRPs and goes after the one(s) with the deepest pockets. In this case, there's no doubt that would be Monsanto. The small settlement the farmers would have to make is known as a de minimis settlement, and it would also protect them from later being sued by Monsanto (should it be determined that they were indeed the contributors of this contamination) to recoup some of the costs of remediation.

A remedial action is defined as a "...remedy that is protective of human health and the environment and maintains protection over time". This is a long-term process, because Monsanto (for the sake of my argument) would have to find the best and most cost-effective solution. CERCLA liability is generally limited to the remediation costs plus up to $50 million to cover natural resource damage (read: contamination of the innocent farmers' crops). However, I would go on to argue that the release of their patented, biological contamination was done willfully. Surely they know that, before they started concocting corn in a test tube, plant pollination occurred naturally. The fact that they're hunting down farmers who aren't buying their seed is evidence enough that they were relying on some level of cross pollination (contamination) to occur.

If we could prove that, then there would be no limit to the amount of money Monsanto would have to fork over to clean up the mess they've created. This would likely involve quantifying what amount of "trace" contaminant is acceptable (and amending their precious patents... or better yet, doing away with them altogether!); this amount would have to be considerably higher than they'd like, to account for the promiscuity of pollinating plants. If they don't like that idea, then they would need to put their mad scientists to work developing a genetic hybrid that a) doesn't pollinate with other varieties of seed or b) is asexual and unable to pollinate at all. They clearly enjoy playing God, and make their customers buy brand new seed each year as it is, so it shouldn't make any difference whether or not their test-tube crops can reproduce! That's the only way they could ensure that their precious biotechnology wouldn't wind up in unsuspecting hands, thus allowing the farmers who choose to sow their crops in the age-old way (that nature intended) to do so, without fear of prosecution.

And that is how I would help David fight Goliath. Clearly, if this were ever to become an actual defense, I would need to get a law degree, read the entire CERCLA Act, flesh out my arguments, and brace for a long and ugly battle. So what do you think? Should I keep my day job or start fielding calls to be some environmental lawyer's next Erin Brokovitch? Is my idea crazy, or crazy enough to work? Who's with me? Let's "stick it to the Mon(santo)" and help farmers everywhere take back their fields!