A coalition of organic farmers and civil society advocates is trying to continue with the lawsuit route. 2013 was a bad year for anti-Monsanto lawsuits in the federal courts, as an appeals court threw out OSGATA vs. Monsanto and the supreme court unanimously trounced Bowman vs. Monsanto (as I predicted).
Now the OSGATA (Organic Seed Growers and Trade Association) litigants are trying to appeal their case to the supreme court. It’s hard to see why they’d expect a different result than Bowman got.
The cases are different on the merits. Bowman was intentionally growing Roundup Ready soybeans whose seeds he hadn’t legally bought but obtained through a seeming loophole (he got them from a processing mill). It should have been no surprise that all nine corporatist judges, both the activist and passive corporatists, voted to apply Monsanto’s patent prerogative to this alleged loophole.
The OSGATA plaintiffs are organic farmers whose crops have been or are in danger of being contaminated by GMOs. Monsanto has a longstanding policy of contaminating the crops of non-GM farmers, thereby damaging or destroying their property, and then suing them for having “stolen” its patents. The most famous such case is the Percy Schmeiser case in Canada, but there have been hundreds of others.
It’s an obscene inversion of every basic premise of justice that where it comes to GMOs, policy and the law uphold the right of the trespasser to trespass, the vandal to vandalize, and place the entire burden of prevention and repair (where repair is even possible) on the victim of the trespass and vandalism. But that’s exactly where we are with USDA policy, which is implicitly upheld by the federal courts. (Some states have laws which try to give farmers more protection.) The USDA provides heavily subsidized crop insurance to GMO growers but none to organic farmers. It then flippantly tells organic farmers to buy their own anti-contamination insurance. This is just one piece of proof that the USDA is a dedicated pro-corporate, anti-farmer, anti-public cadre.
The OSGATA plaintiffs were asking for a court injunction against Monsanto’s legal persecution of farmers. The appeals court openly admitted that contamination is inevitable, and Monsanto didn’t dispute this. But the court followed the trial judge in accepting Monsanto’s lies to the effect that no such persecution had ever taken place. What’s more, Monsanto issued a vague promise not to file lawsuits in the future in the case of inadvertent contamination. The court also cited this in throwing out the case. But I’ve never understood what the content of this promise is supposed to be, since Monsanto also denied it had ever filed such lawsuits in the first place. It seems to me that Monsanto therefore promised nothing but to continue doing what it’s been doing.
I guess the case did provide one piece of progress, in that the court did acknowledge the inevitability of contamination. So while some hacks still try to deny this, we have system acknowledgement of the material fact. What’s still lacking is any kind of morality or justice based upon this fact. What’s also lacking is any sense of crisis as far as how this galloping contamination imperils the future of agriculture itself.
(Meanwhile so far as I’ve seen there’s no sign in the US of the victims of trespass and property destruction suing the GMO “farmers” who directly commit the crimes. But in Australia there’s a case going right now, as organic farmer Steve Marsh is suing the GM canola farmer who destroyed his crop and cost him his organic certification.)
The courts certainly will never care about how GMOs promise agricultural collapse and mass famine. But the OSGATA plaintiffs still hope that they can interest the supreme court in the justice aspects of the problem. I guess they think that whereas Bowman was an avowed scofflaw, they’re innocent bystanders, and this is why the court will find differently in their case, if it takes their case at all.
I doubt the court will take the case. Why should it – the appeals court laid down the law in a way acceptable for Monsanto, which presumably doesn’t want the issue of its persecution of innocent small farmers publicized at the level of a supreme court case. Meanwhile in the Bowman case the court already issued a resounding endorsement of seed patent prerogatives in general. I expect that the system will prefer to maintain Bowman as its basic seed patenting case.
But if it does take the case, the result will still be a pro-Monsanto decision. The four corporate judicial activists on the court will always vote to aggrandize the cartel’s prerogatives. And at least some of the passive corporatists will be content to affirm the lower court decision. (To reprise my distinction of these two categories, judicial activist corporatists will vote to expand corporate prerogatives even in direct defiance of the constitution and the law. Passive corporatists accept such notions as corporate “rights”, “intellectual property” and so on, but prefer to expand these prerogatives in conjunction with law, or at least not in direct defiance of it. There are no anti-corporatist judges on the supreme court, or at any upper court level I’m aware of. The 5-4 Citizens United decision is a classic example of this distinction. Five activists voted to expand corporate “speech” in defiance of the law. Four passivists voted to uphold the law, since here the law directly contradicted the corporate prerogative. No one dissented on the grounds that there’s no such thing as a corporate speech “right”. So it was really a 9-0 pro-corporate decision, with the 5-4 split on a narrower technical ground.)
Are these anti-GMO lawsuits worth doing at all? If the goal is to actually get good decisions from the federal courts, then probably not. They could be good occasions for public education and recruiting to anti-GMO grassroots organizations. But it seems like there’s been little coordination where it comes to that.
I think the same thing applies here which applies in the case of every other kind of within-the-system reformism. The campaign is unlikely to attain much on its own, and at any rate could never be sufficient. Rather, the necessary goal is always the total abolition of GMOs, and the necessary tactics are whatever is necessary to attain the goal. As for reform campaigns, we abolitionists can support them as long as they have no anti-democratic pre-emptive characteristics. (But we must oppose pre-emption of any sort.) But our real activity is to use such occasions to publicize the abolitionist idea and build grassroots abolitionist organizations, toward building a full-scale abolition movement.