By Samuel Howard, Law360,
New York (October 21, 2010) — ArborGen Inc. has intervened in a suit that seeks to shut down the company’s field-testing of genetically engineered eucalyptus trees on the grounds that the federal government’s approval of the experimental plots didn’t take into account environmental dangers.
Judge K. Michael Moore of the U.S. District Court for the Southern District of Florida on Tuesday let ArborGen in on the action, given the fact that the company will have to cut down its experimental cold-tolerant eucalyptus trees if the plaintiffs prevail in overturning the planting permits.
The Center for Biological Diversity and other environmental groups filed suit in July against the U.S. Department of Agriculture, and the judge found that ArborGen deserved the opportunity to defend against allegations that the hybridized eucalyptus trees posed unexamined environmental risks and threatened to run amok.
In its motion to intervene, ArborGen noted that if the permits were revoked the company would have to chop down its hybrid eucalyptus trees, as many had reached maturity and were too tall to safely remove flowering buds by hand.
The suit targets 28 confidential ArborGen sites on hundreds of acres across Alabama, Florida, Georgia, Louisiana, Mississippi, South Carolina and Texas, claiming the USDA’s Animal and Plant Health Inspection Service failed to properly assess the trees’ invasive potential before permitting the field tests.
The environmental groups claim the government hasn’t weighed the risks that the eucalyptus hybrid will escape beyond the experimental plots and become an invasive species in the region, or interbreed with current eucalyptus trees that are already invasive.
ArborGen is petitioning the APHIS to deregulate the tree in order to proceed with commercial plantations for pulp and biofuel production, according to the suit.
The plaintiffs filed a second amended complaint earlier in October, arguing that the APHIS has violated the National Environmental Policy Act by failing to study the combined environmental impacts of the trees. Instead, the service has performed two limited environmental assessments that address just three of the seven planting permits, according to the complaint.
The lax oversight also fails to comply with the 2008 Farm Bill, which requires rigorous regulation of field tests of genetically engineered organisms, the suit contends.
By allowing the experimental eucalyptus trees to flower, the government has put hundreds of threatened and endangered species at risk throughout the Southeast, according to the green groups.
CBD attorney Marc Fink said that the agencies involved need to be more exacting if they want to prevent experimental plantings from spreading.
“There are already a number of environmental problems in the Southeast including a high number of endangered species and the spread of invasive species, and the continued planting of this genetically engineered Eucalyptus tree will only increase uncertainty and threats in the region,” Fink said.
A spokeswoman for ArborGen could not be reached for comment Thursday.
ArborGen is represented by Arent Fox LLP’s Donald McLean, Karen Carr and Rachel Lattimore and Akerman Senterfitt LLP’s James McCann Jr.
The plaintiffs are represented by the Center for Food Safety’s George Kimbrell, Barry University School of Law’s Jeanne Marie Paben and the Center for Biological Diversity’s Marc Fink.
The case is Center for Biological Diversity et al. v. Animal and Plant Health Inspection Service et al., case number 10-cv-14175, in the U.S. District Court for the Southern District of Florida.