30 ELR 10328 | Environmental Law Reporter | copyright © 2000 | All rights reserved

Nuisance Law and the Prevention of "Genetic Pollution": Declining a Dinner Date With Damocles

Mr. Redick is of counsel and Ms. Bernstein is an associate at Chapin Shea McNitt & Carter in San Diego, California, which is counsel to the American Soybean Association on genetically modified organisms risk management. Mr. Redick is co-chair of the annual Biotechnology Roundtable sponsored by the American Bar Association Section on Energy, Environment & Resources (ABA). The Council for Agricultural Science & Technology (CAST), the American Crop Protection Association (ACPA), and the American Agricultural Law Association (AALA) (see the CAST website at http://www.cast-science.org for reports of the past three roundtables). Questions or comments can be sent to cbernstein@chapinlaw.com. The views expressed herein are solely those of the authors.

[30 ELR 10328]

In the quarter century since the first applications of recombinant deoxyribonucleic acid (DNA) technology in agriculture were submitted for regulatory approval in the United States, genetically modified organisms (GMOs) have come to represent an increasingly large share of the grain produced in the United States. In 1999, more than one-half of the soybeans and one-third of corn harvested in the United States came from genetically modified (GM) seed.¹ In addition, an estimated 60 percent of packaged foods sold in the United States may contain genetically altered ingredients.² Due to the concerns of foreign governments and consumers, growers and grain companies are being pushed to segregate GMO crops from non-GMOs.³ The ensuing demand for non-GMO products drives a costly process of segregation of GMOs from non-GMOs that begins in the field and ends at the grocer's shelf.

The segregation of GMOs is creating significant economic risks from the threat of commingling unapproved varieties with those approved for export. Almost overnight, billions of dollars in trade can be impacted by the decision of a foreign government to conduct a lengthy assessment of the slightest hypothetical environmental impact of a GMO. For example, the sequence of events may begin with a regulatory agency overseas finding that threatened butterfly or wild ancestor of corn could be impacted by a particular GMO (e.g, B.t. corn)⁴ that is being considered for import approval as a commodities shipment. While regulators overseas conduct studies to determine if an environmental impact could exist (perhaps even searching the countryside for Monarch habitat or a mythical ancestor of corn), a chain of events is triggered in the United States, where the same GMO is planted on thousands of acres. The delay in approving the GMO for export markets may require immediate segregation of that GMO from the fungible stream of commodity commerce (e.g., open to thousands of varieties of No. 2 grade corn) to protect the export stream for that particular crop from commingling.⁵ In nations where there is a "zero tolerance" for unapproved GMO varieties in shipments of grain commodities, the importing authority may reject large shipments of grain if a single grain of unapproved GMO is found.⁶ The importing authority could theoretically accept small amounts of insect parts and rodent feces but turn away entire shipments based on a single nucleotide sequence of offending DNA or the mere lack of a certificate confirming that no illegal DNA is present.⁷

As a result, alert growers are becoming increasingly uneasy about growing crops that may be barred from export markets on a moment's notice. As growers sit down to feast on the benefits offered by these new GMOs, the uncertainty [30 ELR 10329] over international acceptance of GMOs hangs like the sword of Damocles overhead, suspended by a thread of GM corn silk.⁸ At present, substantial portions of the U.S. export stream of particular commodity crops such as soybeans and corn to the European Union (EU) can be rendered unmarketable by the commingling of a single variety of GMO that is not approved for import to the EU or other major trading partner.⁹

Given this risk of commingling, the GM sword of Damocles also hangs over the heads of those growers of non-GMO crops whose harvest is commingled with an unapproved GMO.¹⁰ The thread of corn silk holding this Damoclean sword could break if a single grain of pollen hybridizes with a neighboring crop rendering it unfit for export, causing "genetic pollution." As grain merchants face increasing pressure to segregate GMO from non-GMO varieties, farmers who grow non-GM, specialty GM, or organic crops may find that their neighbor's crop of unapproved GMOs presents a threat to their livelihood, an inconvenience, or an offense—in legal terms, a nuisance.¹¹ Under cases going back many centuries, unreasonable activities causing harm across property lines can lead to nuisance liability.

Nuisance liability for the use and disposal of GMOs may emerge in various fact patterns, some of which may lead to joint and several liability for the offending grower and the seed company selling unapproved GMO seeds. The sale of a variety not approved in the EU, however, will provide the central fact pattern for this Article, given the threat to billions of dollars in trade that unapproved varieties may pose.¹² For example, where the manufacturer of unapproved GM seeds fails to adequately disclose known risks of commingling an unapproved GMO to growers who are planning to sell crops into the export stream of commerce, the manufacturer's marketing practices may be found to be unreasonable. If the manufacturer's conduct is found to be unreasonable, the foreseeable lost profits of the neighbor who cannot market his crop may be compensable under nuisance law. Moreover, if a sufficient threat is found to neighboring crops, a court could issue an injunction to prevent the domestic sale of that unapproved GMO.

Over the last 25 years, the agricultural biotechnology industry has competently and proactively managed environmental and human health risks.¹³ GM seed manufacturers could greatly reduce the threat of nuisance liability by developing voluntary industry standards for "identity preservation" of GMOs requiring segregation from other crops, thereby neutralizing the threat to neighbors and the corresponding threat of nuisance liability.

Recognizing the threat this uncertainty poses to future sales, seed companies are taking tentative steps toward creating a protective contractual web around GMOs that are not approved in major overseas markets. By specifying conservative planting distances and other measures to prevent commingling, a concerted effort may prevent these GMOs from contaminating crops bound for export or other "non-GMO" markets. Because this protective web around unapproved varieties is a new process undergoing continuous improvement, such efforts may fail on occasion, creating a risk of genetic pollution or outcrossing¹⁴ from pollen or seeds escaping the protective web and commingling with non-GMO crops. As a result, the tentative steps of a few companies should quickly become a full sprint with the entire seed industry in lockstep.

[30 ELR 10330]

At present, the standard of care for managing commingling risks of GMOs is being worked out in private among contracting parties and their trade associations. There is still time to maintain a voluntary approach to managing nuisance risks before the cyclones of litigation or state legislation blow away contracts and the freedom of growers to plant the crop of their choice. If a proactive approach to industry wide stewardship is not undertaken to manage the risks of unapproved varieties, growers and the agricultural biotechnology industry could face standards imposed by authorities who may be misinformed, angry, or otherwise unsympathetic to the environmental and economic benefits of present and future GMOs.¹⁵

As will be discussed below, the environmental risks created by GMO pollen appear at this point in time to be largely hypothetical or easily managed in most cases. They are clearly dwarfed by other more potent threats to related plant species.¹⁶ In stark contrast, the economic risks posed by the sale of an unapproved variety in the commercial marketplace presents a potentially cataclysmic economic impact on the commodity exports of the United States.¹⁷ This complex threat poses practical and analytical challenges for the entire chain of commerce in commodity grains and the lawyers representing those interests.

After discussing the known and hypothetical risks posed by the commingling of existing agricultural GMOs with non-GMO crops, this Article applies those risks to the law of nuisance and trespass, focusing on the threat posed by the unapproved variety. The role of states in regulating agricultural nuisances will then be discussed. This Article concludes by suggesting risk management measures that could be used to prevent nuisances through identity preservation methodology, including the prevention of commingling in the chain of commerce. While this Article's focus is on the problem of unapproved varieties, the research and analysis could apply to other contexts if the magnitude of the economic threat were found to be comparable.¹⁸

Risks Posed by Commingling Unapproved GMOs

The pollen risks from unapproved varieties of GMOs can be divided into environmental risks, such as to wild relatives and non-target insects, and commercial risks to neighboring growers. After harvest, the risk of commingling an unapproved variety lingers on, requiring time-consuming segregation methods throughout harvest, storage, and transport.

Environmental Risks

A variety of GMO may become unapproved if it poses an ecological threat to its wild relations in remote locations overseas.¹⁹ One significant but manageable risk that GMOs may pose to the environment is the risk of harmful outcrossing to rare wild relatives. If they cause a critical decrease in the genetic purity of a unique wild relative, a related subspecies could theoretically breed itself out of existence as a genetically distinct subspecies. Researchers have found evidence of crop-to-weed gene flow that caused enhanced weediness in wild relatives of 7 of the 13 most important agricultural crops.²⁰

This risk to genetic raw material needed for future innovation is one that the biotechnology industry takes very seriously.²¹ For agricultural researchers, these centers of origin [30 ELR 10331] may harbor reservoirs of genetic traits that could prove helpful to future researchers in creating a diverse array of crops capable of withstanding a variety of environments.²²

There are many variables to consider in assessing the risk of outcrossing. For example, the difference in the shape of GM and non-GM pollen may limit the ability of GM pollen to cross-breed with wild relatives.²³ Studies have revealed limitations on the ability of herbicide resistance to transfer and sustain itself in a weed.²⁴ The use of GM seeds in such sensitive areas could require expensive adjustments, such as the use of greenhouses or other pollen-containment facilities. Even the self-pollinating soybean presents certain outcrossing risks if it receives the unsolicited assistance of pollinating insects.²⁵

GMO pollen may also pose risks to non-target wild species, presenting new issues for regulatory review and analysis. In 1999, a flurry of controversy erupted over reports that the larvae of the Monarch butterfly could be threatened by the pollen produced by GM B.t. corn crops currently planted in various parts of the United States. In May 1999, researchers at Cornell published a paper reporting that a high proportion of Monarch butterfly larvae died upon being force-fed pollen from B.t. corn.²⁶ Citing concerns over the increasing use of GMO corn in commercial agriculture, the authors called for a risk assessment comparing "the risks associated with this new agrotechnology" with those posed by "pesticides and other pest control tactics."²⁷

These findings prompted an immediate investigation and response from the agricultural biotechnology industry. The Agricultural Biotechnology Stewardship Working Group consortium, which included Monsanto, DuPont, Pioneer Hi-Bred, Novartis AG (a Swiss multinational), and the U.S. Department of Agriculture sponsored a symposium on November 2, 1999, to expand upon this "premature and incomplete" research. Further research showed that the risks to Monarch butterflies in the field were likely to be minimal (e.g., pollen washes or blows off the leaves, butterfly mothers avoid the pollen, larvae hatch after pollen has come and gone, etc.).²⁸ Given the relative impacts of existing pest control technologies such as broad spectrum pesticides, the use of B.t. crops could prove to present a net gain for the Monarch butterfly.²⁹ The consortium's findings, in turn, were criticized as "a little premature" by leading environmental activist Rebecca Goldburg of the Environmental Defense Fund.³⁰

While there appears to be a consensus on the hypothetical nature of this risk to monarchs, the existence of ongoing research provides a hypothetical risk for lengthy environmental impact studies, thereby delaying approval of a new GMO for import. Under the Cartagena Protocol on Biosafety to the Convention on Biological Diversity (Biosafety Protocol),³¹ risks such as these could cause regulatory approval delays well into the 21st century (and in some cases of unreasonable, unscientific delay, trade disputes at the World Trade Organization). The management of outcrossing risks to wild relatives and other related species currently used in agriculture is one of the core concerns of the Biosafety Protocol. This protocol is the first binding public international law to regulate genetic engineering; in so doing, it also recognizes the benefits of biotechnology for the first time in a binding international environmental agreement. The protocol requires a member to regulate seeds, but permits a nation to impose scientific processes for approving or disapproving new varieties of GMOs contained in commodities shipments, particularly those alleged to pose threats to biological diversity.³² For growers in the United States, this precautionary [30 ELR 10332] approval process creates an economic risk by transforming otherwise harmless pollen into an economic threat to neighboring growers. Like the butterfly of chaos mathematics that flaps in Asia causing a thunderstorm in the American plains,³³ lengthy regulatory assessments conducted thousands of miles away can trigger potentially cataclysmic impacts on U.S. agricultural exports. With the regulation of agricultural biotechnology in the 21st century, the only thing certain is continuing uncertainty over overseas regulatory developments.

Risks to Neighboring Crops From Unapproved Varieties

While the environmental risks posed by GMOs may prove to be minimal in comparison to their environmental benefits, uncertainty over premarket approval requirements for new varieties of GMOs are causing immediate economic impacts. The international marketplace has turned against GM crops from the United States, with activist consumers and retailers reacting strongly against perceived risks of GMOs.³⁴ Prince Charles of England recently joined the chorus of European consumers calling for a moratorium on GMOs, stating that genetic engineering "takes mankind into realms that belong to God and to God alone"³⁵ and raises ethical and practical considerations that compel a moratorium on GMOs in Britain.

Even nations that generally endorse the import of GMOs may find that the risks posed to human health and the environment merit long-term monitoring. Legislative initiatives are sprouting around the globe addressing the environmental impacts of GMOs. Under a proposed amendment to Switzerland's existing law on GMO approval, the liability for environmental impacts of GMOs would extend for 30 years.³⁶ As a result, existing approvals in some nations may be subject to reassessment as time goes on. This creates an incentive for the agricultural biotechnology industry to monitor impacts to related species in order to demonstrate sound stewardship of genetic resources over long periods of time—long after a GMO's 20-year patent term and attendant profits run out.

As a result of these growing international concerns, U.S. growers are faced with a marketplace that may reject any shipment of grain that cannot be certified as "non-GMO" or containing only GMOs approved for import into that nation.³⁷ A rejection of hundreds of millions of dollars in U.S. corn trade to the EU has already occurred. The EU has stated that it will continue to refuse to accept corn shipped from the United States because of concerns that the shipments contained GM corn varieties not yet approved in the EU.³⁸ U.S. soybean exports to the EU were threatened with commingling of unapproved varieties,³⁹ but the company involved in marketing the unapproved variety, AgrEvo USA, wisely chose to refrain from marketing its Liberty Link(R) GM soybean.⁴⁰ To date, although U.S. soybean exports have not suffered the same fate as corn exports, sales of U.S. soybeans to the EU have fallen. This may be due to consumer fears regarding gene-altered food, regardless of whether the GMOs have been approved by regulatory authorities or not.⁴¹

The Future Generation of Unapproved Varieties

Uncertainty over the regulatory status of new GMOs in overseas marketplaces will continue to cause concern for growers due to the increased international oversight of GMOs. Until the dust settles from the new Biosafety Protocol, the hypothetical risks posed by GMOs will continue to provide grounds for delaying overseas approvals.⁴² Under the "precautionary" approach to regulation, the burden of proof would be shifted so that those introducing new technologies [30 ELR 10333] have to prove the technology is safe.⁴³ Under traditional risk-based regulation, some showing of probable risks must be made before precluding the marketing of a new product or technology.⁴⁴

The ancient tort of nuisance and a new wave of precautionary global regulation share a common fundamental premise. The tort of nuisance and the precautionary regulatory approach both incorporate an inherently conservative, sometimes irrational element that may provoke criticism from those who endorse a rational approach to technology assessment.⁴⁵ This precautionary viewpoint, once adopted overseas, could trigger a corresponding precaution in a court faced with a nuisance claim based upon the economic threat posed by an unapproved variety.

As more information about risks and benefits becomes available, agricultural biotechnology may weather the current storm and gain wider acceptance internationally. The United States experienced its own growing pains in assessing the risks and benefits of biotechnology. For more than 25 years, scientists and policymakers have analyzed and repeatedly revisited the potential environmental risks of genetic engineering.⁴⁶ Following extensive congressional hearings, the United States established a Coordinated Framework for Regulation of Biotechnology in 1986, which provides for multiple agencies to regulate various aspects of GM organisms.⁴⁷

In the 1990s, agricultural biotechnology products became increasingly common in the United States, bringing significant incremental improvements in efficiency to commercial farmers. In many cases, the use of GM crops has resulted in reduced reliance on pesticides and herbicides and may have other beneficial environmental effects, such as soil conservation, enhanced nutrient content, and reusing land rendered unusable by adverse soil and weather conditions.⁴⁸ Thus, it is entirely possible that the current international controversy over GMOs will eventually lead to a risk-based rather than a precautionary approach to overseas approvals.⁴⁹

The primary problem this creates for U.S. growers is the risks posed by varieties that have not met the overseas approval requirements imposed by key trading partners. With premarket regulatory approval requirements proliferating in markets around the world, the seed manufacturer and grower will need to communicate information about regulatory approvals. The seed company and the grower can determine whether the crops should be "identity preserved," meaning that no overseas approval is required, or part of the export grain supply. Because safe planting distances will vary depending on the tolerance levels for GMOs set by overseas regulatory authorities, the average grower seeking to exercise an appropriate level of care may need to ascertain which varieties his neighbors are growing within outcrossing range and where they intend to market their crops.⁵⁰

Applying Nuisance Law to Environmental Impacts of Agricultural Biotechnology

As a result of these emerging changes in the marketplace, growers are faced with a future export market that may reject any shipment of commodities that cannot certify itself as a non-GMO. At present, this certification process suffers from nonexistent, uncertain, or varying standards for testing and segregation processes and methodologies. Growers who plant a variety that is not approved in an export market will have to segregate their crop from the commercial chain of commodity commerce or else run the risk of causing overseas buyers or regulators to reject millions, if not billions, of dollars in exports of corn, soybeans, or other commodity crop. Failure of identity preservation can lead to liability under nuisance law.

Although the concern about potential harm to the environment and human health from GMOs is new, the law addressing harm to public rights or private property is as old as the concept of real property. The earliest recorded applications of nuisance law to vindicate public rights are among the first common-law cases, dating back to the 14th century.⁵¹ The right to recover individual damages in a private nuisance action under British common law followed in the 16th century.⁵²

[30 ELR 10334]

Because the legal concept of "nuisance" has been applied in myriad factual settings over hundreds of years of common-law decisions, it has produced a wealth of doctrinally inconsistent holdings. One of the foremost authorities on tort law, Dean Prosser, described the common law of nuisance as an "impenetrable jungle."⁵³ Likewise, the Oxford Companion to the Law defines nuisance as "a term of not very definite meaning."⁵⁴

Notwithstanding its relatively amorphous nature, the broad contours of nuisance law are well established. Nuisance liability "generally covers acts unwarranted by law which cause inconvenience or damage to the public in the exercise of rights common to all subjects, acts connected with the occupation of land which injure another person in his use of land or some right connected therewith."⁵⁵ Pollen moving across a property boundary readily falls within the heart of the impenetrable jungle of nuisance law, provided there is a sufficient "fit" for the pollen grain in the receiving plant to bring about an unapproved hybrid variety or other adverse impact.⁵⁶ Similarly, the foreseeable transport of a stray seed by insects or birds could give rise to a nuisance claim. Given the agricultural origins of American society, thousands of cases could be surveyed for cases involving a domesticated organism crossing property borders so as to cause harm.⁵⁷

Nuisance law is actually two distinct tort remedies. "Public nuisance" is a broad remedy available to the state to protects rights common to all members of a given community. In contrast, "private nuisance" is tied firmly to the use of land, protecting individual property owners' rights in the use and enjoyment of their land.⁵⁸ A private nuisance often overlaps with public nuisance, particularly where a private nuisance has expanded into a problem for the entire community. For example, the pollution of a stream that adversely impacts the ability of dozens of riparian property owners to use the stream's water in connection with their land for a period of time does not necessarily create a public nuisance.⁵⁹ If the pollution prevents the use of a public beach or kills all the fish, however, thereby depriving the entire community of the opportunity to fish in the stream, it could become a public nuisance.

Public Nuisance and the "One Bad Apple" Effect

The threat posed by the commercial sale of an unapproved variety is particularly well suited for an injunction under public nuisance law. In an age where foreign governments are testing shipments of commodities using nonstandardized genetic tests,⁶⁰ the failure to create sound processes for segregation (identity preservation) of unapproved GMO varieties could be disastrous. Commingling leads to the "One Bad Apple" effect—a single unapproved GMO crop commingled with other crops can eventually lead to the rejection of an entire shipment of grain. Moreover, when several hundred million dollars in trade has already been lost due to attempts to export unapproved varieties of U.S. corn to the EU,⁶¹ a court could scrutinize existing processes for identity preservation to determine whether the threat is a continuing public nuisance.⁶²

Public nuisance law could also provide protection in the United States from the commercial sale of varieties that have not been approved in major trading partners. The chain of commerce may be protected if the authority enforcing public nuisance considers the commodity export stream to represent a significant public right needing protection. The Restatement (Second) of Torts defines of public nuisance as follows:

(1) A public nuisance is an unreasonable interference with a right common to the general public.

(2) Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:

(a) Whether the conduct involves a significant interference with the public health, public safety, the public peace, the public comfort or the public convenience, or

(b) Whether the conduct is proscribed by a statute, ordinance or administrative regulation, or

[30 ELR 10335]

(c) Whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.⁶³

Public nuisance may apply to the sale of GM seeds and crops in two contexts: (1) pollen drift or outcrossing, to wild relatives, and (2) commingling of unapproved GMOs and approved GMOs or non-GMOs in the export stream of commerce.

Under the law of public nuisance, a public official, such as a prosecutor or attorney general, is empowered to address any action that is required by "the common good, public decency, or morals, or the public right to life, health and use of property . . . which at the same time annoys, injures, endangers, renders insecure, interferes with, or obstructs the rights or property of the whole community, or neighborhood, or of any considerate number of persons."⁶⁴ This could include marketing practices that threaten the chain of export commerce in a particular commodity crop, including the commercial sale of an unapproved variety of GMO.

Private individuals may bring public nuisance actions, acting as citizen attorneys general, in jurisdictions recognizing this right.⁶⁵ In such jurisdictions, one action can bring both a public nuisance and private nuisance if the private landowners allege a "special injury" apart from the public interest affected.⁶⁶ For example, a private plaintiff may have lost profits of his own, and he may render the contents of an entire grain elevator unmarketable due to the commingling of his crop with the community's harvest. The public nuisance claim would allege impact on the chain of commerce. The public right affected would be the risk of economic harm to the entire chain of export commerce.

The nature of a public right may also include torts that more closely resemble consumer fraud upon the growers. In a public nuisance case brought in Missouri, for example, the state won an injunction to prevent an unfair trade practice involving the administering of health care by a naturopath that the court found lacked a basis in accepted medical science.⁶⁷ This nuisance claim was "nuisance per se" based on a statute. Agricultural risks posed by plant pollen and invasive species are one risk addressed by such statutes.⁶⁸ Applied to the marketing of GMOs that have yet to be approved in the EU, a seed company's marketing practice could be enjoined if growers are being misled or harmed by the practice of selling unapproved GMOs without adequate disclosure of the economic risks of commingling. GMO-specific statutes may not necessarily be required. Growers may also find protection under consumer fraud statutes that are broadly written.⁶⁹

The determination of unreasonableness may require a balancing test, which would weigh the utility of the conduct at issue against the harm to the public right.⁷⁰ This requirement should limit the ability of activists to seek public nuisance injunctions that are based upon the hypothetical risks to U.S. consumers. The sale of an unapproved variety, however, presents a potential economic cataclysm that may be sufficiently imminent and beyond dispute that an injunction is merited.

To minimize the threat of harm to a public right that could result from GMO outcrossing, the agricultural biotechnology industry could develop and propagate industry standards for safe planting distances. There are databases currently in use that provide farmers with information about purchasers willing to buy various varieties and mixtures of GMO crops.⁷¹ Comparable databases could assist farmers with information about planting distances.⁷² Toward that end, construction of widely known Internet-based databases indicating the location of wild relatives should be maintained so that GMO manufacturers and growers can easily avoid planting near wild populations considered at risk.⁷³ These same tools could be used to monitor nuisance risks if growers provide data on marketing plans for their crops.

Public Nuisance as a Tool to Reduce Overseas Approval Delays

In some of the nations overseas that are struggling to build the regulatory capacity to regulate GMOs, public nuisance law could become a useful tool for developing countries and the agricultural biotechnology industry to manage risks posed by new GMOs. The law of public nuisance provides a general set of rules for assessing and preventing environmental threats that could be adapted to a judicial oversight mechanism. In countries that possess the capacity for civil resolution of disputes, but little regulatory capacity, imports could proceed subject to nuisance analysis. For example, commodities shipments travel in an envelope of quarantine standards that should prevent the release of GMO during transport. If there is evidence of a violation of those protective standards, a nuisance action could be pursued for the occasional instance where this might occur. [30 ELR 10336] There would be no need to implement premarket approval requirements for commodities, as the EU has chosen to do. Nations that are not as well supplied with food grains as the EU may prefer a more cost-effective, immediate solution to threats of GMOs.

Commentators have suggested for years that public nuisance law provides the ideal mechanism for regulating the environmental impacts of biotechnology because it provides an existing legal framework that could prevent threats to the environment before they occur.⁷⁴ Public nuisance law provides a tool that could be used to prevent all threats to biological diversity, the worst of which would dwarf the hypothetical threat of outcrossing from GMOs.⁷⁵ As a result, public nuisance law provides a model system that could be used to streamline the approval process in developing countries lacking an adequate environmental regulatory system, provided there is a system of adjudication (a common-law court system with nuisance case law or a civil jurisdiction with a statute) capable of resolving a threat posed by GMOs.⁷⁶

For U.S. growers and seed companies facing a patchwork quilt of overseas approvals, the doctrine of public nuisance could provide a safety valve for nations pondering the adoption of "command and control" approval measures. In some nations, public nuisance law could provide a suitable substitute for a draconian approval process that might prevent the benefits of biotechnology from reaching those who need them most.

The new Biosafety Protocol provides for a data "clearinghouse mechanism" that might be adapted to the global prevention of GMO nuisances.⁷⁷ As this clearinghouse evolves into a global database tracking GMO regulations, those nations opting for a post-market surveillance program for commodities may have greater food security and more rapid development of efficient protective capacity.

Private Nuisance

As noted above, the difference between private nuisance and public nuisance, according to Dean Prosser, is the difference between "particular damage" (i.e., a property owner's individual rights) and general damage (i.e., the interests of the public as a whole). In the context of an unapproved variety of GM corn, for example, pollen that travels across several fields could give rise to a private nuisance because of its impact on individual growers. If it causes or threatens to cause sufficient impact on many growers from commingling at the elevator or ocean-going freighter, a public right might be present to trigger the law of public nuisance applicable in a particular state.

Generally speaking, private nuisance claims must arise from one of three defined categories of conduct: (1) an intentional interference with another landowner's use of land (e.g., knowingly planting an unapproved variety of corn at a planting distance virtually certain to cause commingling damage to a neighbor's crop); (2) negligence (e.g., carelessly planting an unapproved variety of corn at a planting distance likely to cause commingling damage to market a neighbor's crop); or (3) acting in a manner so "abnormal and out of place in its surroundings" that strict liability should be imposed under "ultrahazardous" or "extrahazardous" liability. Strict liability without regard for fault can be imposed in the latter instance.⁷⁸ It is difficult to envision any set of facts creating ultrahazardous liability for agricultural GMOs.

According to the Restatement (Second) of Torts, a private nuisance is "a nontrespassory invasion of another's interest in the private use and enjoyment of land."⁷⁹ Commentators have explored the doctrinal inconsistencies between trespass and nuisance in detail, noting the low threshold for harm that applies to trespass.⁸⁰ Because the pollen causing outcrossing is an actual particulate that enters onto neighboring property causing physical impacts, the transfer of pollen from one field to another may qualify as trespass in many jurisdictions.⁸¹

Nuisance and trespass claims are often named in tandem in complaints alleging environmental harm to neighboring property. For the limited purposes of this Article, the law of trespass will be presumed to follow alongside nuisance law in the law prevailing in most states.

Defining Unreasonable Conduct in Planting GMOs

Dust from a neighbor's property may constitute a nuisance if it causes perceptible injury to the property or so pollutes the air as to sensibly impair the engagement thereof.⁸² The plaintiff in a nuisance action targeting GMOs may be able to prove negligence by showing that the grower failed to observe the industry standard for safe distance for pollen transfer⁸³ or even international standards.⁸⁴ [30 ELR 10337] If the industry standard is deemed insufficient to address the risk involved, negligence may be proven even if the planting distance conformed to an industry standard. For example, if the nuisance is created by an unapproved variety with zero tolerance level of commingling, the planting distance may need to be over 20 feet for soybeans given a zero tolerance. Based on an assumed tolerance of 1 percent, however, a planting distance of 20 feet may be more than enough distance for soybeans. With experience, the appropriate distances can be worked out in practical experimentation. In the meantime, conservative planting distances necessary to meet low or zero tolerances imposed overseas will reduce production and complicate the grower's harvesting process.

Nuisance liability may also arise if a defendant failed to take reasonable steps "without too great [a] hardship or expense" to reduce or eliminate the inconvenience or harm done to the plaintiff's use of his property.⁸⁵ For GMOs, this will require adherence to identity preservation methodology adapted from certified seed production processes. New varieties of specialty GMOs such as nutriceuticals already require identity preservation methods to be marketable under the contract from the buyer of specialty grains. For a variety that is not approved in the EU or other major export markets, however, there may be risk management measures that the grower should undertake in addition to the typical identity preserved measures used in certified seed production. In creating an identity preserved stream of commerce, the company seeking to meet the standard of care should pay careful attention to the risks posed to neighbors. Measures targeting the preservation of identity, such as those used in certified seed production, may not be concerned with leakage from the system, but only with leakage into the system (i.e., outcrossing threatening the purity level of the seed).

Given that the law of nuisance requires parties to look for the least restrictive abatement options, a neighboring landowner who is aware of the adjacent crop can request a border zone of sufficient distance.⁸⁶ This communication among growers may provide the least restrictive approach to nuisance threats.

The responsibility to avoid commingling of an unapproved variety continues after harvest. Certified seed production methods may not address all risks of commingling. For example, while seed production would require cleaning out of farm equipment (combines, bins, trucks, etc.) before the equipment is loaded with seed to avoid other crops coming in, the prevention of nuisance liability would require careful cleaning of the bin or truck after use to prevent the unapproved seed from contaminating other crops bound for export. The standard of care for avoiding nuisance will evolve over time, as methods for preventing outcrossing are perfected.

The balancing of equities could present a significant challenge in cases where a defendant appears to have exercised due care in an activity carrying great public benefit.⁸⁷ For example, a GMO that has a high social utility, such as a nutriceutical, may be able to prevail over a neighbor's organic crop in a nuisance action. People who live in communities must suffer some inconvenience and annoyance from their neighbors, as not every disturbance is a nuisance.⁸⁸

As a practical matter, however, a large multinational seed company and the grower of an unapproved variety may find some state courts skeptical of a defense based on the broad public benefits of agricultural biotechnology if the company and grower ask the court to balance the utility in a case where the plaintiff's conduct is unassailable. One Wisconsin court excluded all evidence of the alleged utility of a power plant, holding: "Whether its economic or social importance dwarfed the claim of a small farmer is of no consequence in this lawsuit."⁸⁹

Causation may also be relatively easy to establish, given a characteristic DNA sequence. The expansive doctrines of res ipsa loquitur⁹⁰ and joint and several liability⁹¹ may apply where multiple sources of the offending DNA render the exact cause unknown. These doctrines vary widely in their application from state to state, so careful research is recommended before initiating litigation.

Nuisance law provides an injunctive remedy that may require that the nuisance be abated by removal of the offending material. Once a determination has been made that the use of particular EU-unapproved GMO would be unreasonable under the circumstances present at the time, an injunction may issue prior to planting based upon the fear of future commingling.⁹² The law of nuisance has long been used to allay a community's fear of contagion⁹³ and even land uses [30 ELR 10338] considered "depressing" to the neighbors (i.e., funeral parlors).⁹⁴ A defendant who is found liable for a nuisance arising from outcrossing may be subject to an injunction restraining future planting or one requiring containment of his crop, such as encasing the tassels of corn in plastic to prevent pollination.

Monetary damages in tort law may also be awarded in a private nuisance claim. The damages will vary considerably depending upon the facts. For example, if the harm occurs after harvest when a crop is rejected at a genetic test site (e.g., a grain elevator), monetary damages could be awarded for the value of the lost profit from the expected sale price for crops⁹⁵ subject to proof.⁹⁶ Since growers will have a duty to mitigate their damages (e.g., find another buyer for commingled crops), databases of potential buyers will help expedite the process of providing "cover" for growers whose crops cannot be exported due to commingling with an unapproved variety. Extensive efforts have been made to provide outlets for growers holding corn that could not be exported.

In outrageous cases, emotional distress damages without the usual bodily injury requirement may also be awarded under nuisance law.⁹⁷ Finally, in cases involving fraud, malice, or conduct deemed to amount to the conscious disregard of the rights of neighbors, punitive or exemplary damages can be awarded for conduct meeting the evidentiary standards for awarding such damages in the applicable jurisdiction.⁹⁸ The law of trespass may permit both consequential and punitive damages to be awarded even where the actual damages are nominal.⁹⁹

Finally, nuisance claims involving GMOs may also present interesting implications for the running of the statute of limitations. In many states, the continuing nuisance will have a continuing statute of limitation that begins to run with each new event causing harm (i.e., with each expanding impact of the GMO in the wild or neighboring fields).¹⁰⁰ The exposure to such claims continues to occur as long as the offending DNA is present and replicating from year to year on the property. While the mere presence of a GMO is not necessarily cause for harm (e.g., an errant corn plant cropping up in soybeans can be easily removed using the ancient "hoe" technology), the potential for a long tail of liability under nuisance law for a living organism mandates a conservative approach to outcrossing and other releases into the environment.

Comparative Fault of the Seed Supplier

To the extent that the seed company or its agents were negligent in selling the seed, such as by failing to warn of proper use (i.e., planting distances or disposal), the seed company could be held liable for assisting in the creation of a nuisance. In a groundbreaking California case arising under nuisance law and implied equitable indemnity, Selma Pressure Treating v. Osmose Wood Preserving Co.,¹⁰¹ the court allowed a claim against chemical companies for the end user's improper disposal of hazardous waste on the grounds that a factual issue was presented regarding the adequacy of the disposal warning provided to the end user. The warning provided may have seemed adequate at the time (during the 1960s) but plaintiffs alleged that the chemical companies involved should have provided specific instructions regarding disposal. As a result, the court of appeal found that plaintiffs had properly pled that chemical companies had a duty to warn of proper disposal methods to avoid harm to the environment. California plaintiffs currently use the Selma holding to establish the duty of chemical companies to warn of certain risks for conduct that occurred years before such warnings seemed necessary to a reasonable person.¹⁰² Nuisance law and comparative fault doctrine could apply in other states to apportion fault between growers and seed companies.

To reduce their exposure for implied indemnity in assisting in the creation of a nuisance, seed companies will need to provide adequate warnings regarding the proper use and disposal of GMOs, including disposal of pollen by wind drift. Currently, there are a variety of efforts underway to advise growers purchasing the seed that there may be difficulty in marketing the crops once harvested. For example, simple steps to prevent the transport of pollen can be applied with self-pollinating crops such as soybeans. Border rows of 20 feet are commonly used in identity-preserved production of soybeans to prevent other soybeans from contaminating the identity preserved crop.¹⁰³

Seed companies in the agricultural chain of commerce have historically used "implied warranty of fitness for an intended purpose" disclaimers, and companies may attempt to assert these disclaimers in defending a claim that they failed to inform growers that an unapproved GMO was not fit for [30 ELR 10339] export upon harvest.¹⁰⁴ Some unapproved GMOs have also been sold with a warning "Not for Export" stamped on the seed bag.¹⁰⁵ Seed companies that specify identity preservation strategies are also including broad provisions that shift risks of nuisance to the grower.¹⁰⁶ The enforceability of a disclaimer presents significant issues of disputed law and fact, and enforcement varies with jurisdiction and factual circumstance.¹⁰⁷ For a disclaimer to adequately advise growers of the risks associated with unapproved varieties, companies would be well-advised to describe in detail all the risks posed by growing such varieties, including the risk that commingling after harvest could cause significant trade losses as well as potential liability for growing the unapproved GMO. A single grower's unapproved GMO could cause a Panamax¹⁰⁸ class vessel containing the harvest profits of over 700 farms, combined in a single grain shipment, to evaporate into thin air upon rejection at the European port.¹⁰⁹ If a grower does not understand the extent of the risk and his potential liability, he may later claim that he would have declined the purchase or would have continued to grow GM crops only with the utmost care. He may also seek to revoke acceptance of the seeds.¹¹⁰

Seed companies should take a strategic, long-term view of potential liability risks and invest in prevention where it makes good business sense to do so. A grower who is unaware of the magnitude of the risk may not be able to prevent the harm from occurring and may have a claim for comparative fault that is not deemed barred by disclaimers of implied warranty of fitness for an intended purpose. Attempting to shift risks to growers could prove to be an unwise business decision, even if the risk shifting were somehow to succeed as a legal strategy. A grower burned by nuisance or commingling liability will not be a purveyor of goodwill for the seed company.

Preventive Actions by States

The states have broad powers to regulate agriculture within their borders.¹¹¹ It appears likely that the emerging "segregated marketplace" will be supported by states that find it in their economic interest to do so. At present, the primary source of oversight for genetic pollution in the United States will be the states and their regulatory agencies, including departments of agriculture, environmental regulators, and state attorneys general.

Agricultural nuisances are nothing new to state agricultural regulators. They are possessed of powerful tools for preventing threats to agricultural commerce. To maintain an adequate level of protection nationwide, however, some standards may need to be adopted regarding distances for planting to avoid pollination of neighboring crops or wild relatives of the GMO.¹¹²

To manage agricultural affairs within their borders, state legislatures may create agricultural districts with various powers defined by statute.¹¹³ These powers include the abatement of public nuisances, including specific threats that come to the attention of the legislature.¹¹⁴ Cross-pollination of varieties that would be better off separated is not a new problem—"growers' districts" in various jurisdictions across the United States could emerge as tools to control agricultural nuisances from GMOs.¹¹⁵ Districts can be declared off limits to certain varieties that are likely to render the dominant crops in a region less marketable and can also provide a protective function in preventing private nuisance lawsuits.¹¹⁶

The public entity responsible will have broad discretion to take measures necessary to abate a living threat to agriculture and will be exempted from the law of trespass for actions taken to protect life, health, or property.¹¹⁷ The agency that does the abatement may have a statutory lien [30 ELR 10340] for the costs of abatement that attaches to the property of the abated owner.¹¹⁸

In addition, states may require that crops be tested at grain elevators or other central points in the distribution chain for the presence of GMOs. The constitutionality of state testing requirements was established early in the first "Green Revolution" for fertilizers and other innovations in agriculture.¹¹⁹ Standards for seeds¹²⁰ and field crops¹²¹ can also be set to define the qualities of goods entering the marketplace.

There are many state statutes that declare certain agricultural activities exempt from public and private nuisance.¹²² These "right-to-farm" laws were passed in the 1970s and 1980s in response to cases where suburban sprawl caused homeowners to "come to the nuisance." Various right-to-farm laws have been passed in all 50 states.¹²³ As concentrated animal feeding operations have grown, homeowners have challenged these statutes on constitutional grounds as takings, and limits on the right-to-farm exemption to nuisance actions have emerged.¹²⁴ Since the right-to-farm statutes are primarily intended to prevent vague nuisance claims based upon the odors that naturally attend farming, the exceptions for negligence present in some right-to-farm laws may apply in cases where an unapproved GMO is planted in a negligent manner. For example, the Missouri statute allows claims based on negligent farming.¹²⁵

The right-to-farm laws typically address the normal impacts of farming that are inconvenient or offensive to residents, not the threat of a cataclysmic economic impact from negligent operation, such as the failure to exercise due care in planting distances. As a result, any unreasonable actions, such as shortening recommended distances for planting, could give rise to negligence and nuisance liability.

If the risks of commingling are not well-managed, state legislation regulating GMOs may proliferate in states facing the complications to agricultural marketing that result from use of GMOs. In Minnesota, a bill was introduced into the state legislature that would regulate the introduction of GM crops to control the risks posed by outcrossing.¹²⁶ The bill would require seed manufacturers who sell GMOs using a technology use agreement—a grower's agreement licensing the technology and precluding the saving of seed—in sales to GM seed purchasers to include adequate warnings to the grower to avoid "cross-pollination and other contamination" from the GMO to other crops. Failure to provide adequate instruction subjects the seed manufacturer to "strict liability" with no waivers permitted, while the grower has "secondary liability" that is presumably triggered only if the seed seller is unable to pay or has viable defenses.¹²⁷ The bill would set up a permitting system for GMO varieties featuring labeling, grower affidavits of compliance with separation standards, and labeling of non-GMO products produced pursuant to the separation standard.¹²⁸ The Minnesota Soybean Growers Association is opposed to the bill because it would impose major restrictions on most Minnesota soybean farmers, since 75 percent of Minnesota's soybeans are GMO varieties.¹²⁹

The Minnesota bill may signal the beginning of a trend among states to take GMO regulation upon themselves. GMO labeling requirements for food are also being proposed at the state level. As this Article was headed to press, activists in California were collecting citizen signatures to put a "direct to the public" initiative on the ballot requiring labeling of food produced from GMOs,¹³⁰ and a GM labeling bill, S.B. 1513, was introduced in the California Senate Agriculture Committee.

Managing the Risks of Unapproved Varieties

If the agricultural biotechnology industry demonstrates a competent risk management process for managing the nuisance risks posed by unapproved varieties, overseas regulators are more likely to accept U.S. exports of commodity crops. Moreover, the demonstration of identity preservation methodology provides powerful arguments supporting those who consider GMO-specific legislation unnecessary (particularly legislators at the state level). The agricultural biotechnology industry has sometimes used growers agreements to manage certain problematic environmental risks. Using growers agreements to specify environmental protection measures, seed companies [30 ELR 10341] could act in advance of regulation to develop standards that optimized to local conditions and the needs of the parties to the contract.¹³¹ For example, the growers agreements used by the DuPont family of companies (Optimum Quality Grains, Pioneer Hi-Bred International, and Protein Technologies Inc.) are publicly posted on the Internet with procedures for avoiding commingling of the contracted crop and neighboring crops.¹³² DuPont has targeted output traits that require identity preservation, imposing contractual segregation requirements for the newer "output" trait soybeans, such as high oleic soybeans, in its identity preserved system.¹³³ As the market for specialized output traits expands (e.g., with "nutriceuticals" designed to carry therapeutic compounds, high nutrient varieties, or health-oriented varieties), the need for identity preservation methodologies will accelerate. These methodologies can also be used to prevent nuisances created by pollen from occurring.

To date, the oversight of industry trade associations throughout the chain of commodity commerce has played a major role in the avoidance of commingling. The American Soybean Association, which represents soybean growers, initiated such an oversight program in November 1997 by requesting 11 major seed companies to refrain from the commercial sale of unapproved varieties of soybeans. This program has continued with cooperation from the agricultural biotechnology industry, successfully protecting the export stream of soybeans from the risk of commingling with unapproved varieties. The American Soybean Association is exploring the additional measures beyond certified seed production processes¹³⁴ that may need to be implemented to protect the export supply of soybeans commodity crops from commingling of unapproved varieties.

In addition, the National Grain and Feed Association recently outlined steps they asked companies to take for unapproved varieties of corn (maize).¹³⁵ As the industry begins to recognize the risks and benefits of adopting identity preservation methodologies, standards will emerge to guide growers of GMOs in preserving identity (no pollen flowing into the contracted crop) and preventing nuisance (no pollen flowing out from the contracted crop to a neighbor's field).

Like the American Soybean Association, the National Grain and Feed Association has advocated the adoption of measures modeled after certified seed production. These associations and others with similar interests hope to protect the export supply of corn and soybeans from contamination with unapproved varieties. The process of avoiding nuisance in an environment where unapproved varieties have a zero tolerance presents a challenge, however, due to pollinating insects and other unintended commingling.

The following industry standards, for example, could establish a "reasonable" GM crop production scheme: (1) secure regulatory approval in major overseas markets before marketing new GMO varieties; (2) where regulatory approval cannot be secured, establish a segregated stream of commerce to prevent the commingling of unapproved varieties with export-approved varieties; (3) promote the establishment of reasonable "tolerance levels" (e.g., up to 5 percent unapproved GMO content) in foreign markets that are wary of new GMOs; (4) specify appropriately conservative distances for avoiding significant outcrossing; (5) establish methods for monitoring outcrossing; and (6) manage grower incentives and conduct so the system works as planned. The last item—managing growers—could prove the most challenging. For the system to fail and cause commingling, only one grower needs to violate the procedures to create the "One Bad Apple" effect.

Given the complex web of international requirements and the patchwork quilt of state requirements that may emerge to address the risks of GMOs, anyone in the chain of grain commerce would be well-advised to monitor every level of legislation, from county ordinance to international treaty. When a particular variety is not approved in overseas markets or requires a permit in a particular state, both the seed seller and the grower need to be aware of new developments. The loss of substantial investment costs to the seed manufacturer who develops a product line that cannot reach its intended market due to the threat of liability can be avoided by careful planning.

There is a growing recognition among industry leaders that the systems used to manage biotechnology will matter more to its success than simply producing safe and effective products.¹³⁶ Given that an unapproved variety of GMO preparing for a commercial launch will face much higher segregation costs (as long as a zero tolerance standard for unapproved varieties applies in foreign markets), most new GMOs will require payment to growers of the higher premiums available for output traits raised in identity preserved systems. The pressures of regulatory approval delays imposed from a distance, combined with the local threat of nuisance liability, could speed the transition to more consumer-friendly "output trait" products.¹³⁷

Conclusion

As U.S. agricultural biotechnology exports continue to grow and foreign regulatory barriers to imports crop up, it is increasingly important for the U.S. agricultural biotechnology industry to continue to employ voluntary restraint in the marketing of varieties not yet approved in major foreign markets. Public nuisance law provides a ready-made tool for growers or state regulators to obtain an injunction [30 ELR 10342] against the sale of unapproved varieties. Where sales have occurred and caused impacts traceable to outcrossing, growers may be able to assert claims for private nuisance. A high profile nuisance case involving GMOs could lead to costly litigation, legislation, and remediation.

The "One Bad Apple" effect takes the "tragedy of the commons" that gave birth to environmental law to a new level: the entire chain of commerce in a particular crop—the entire commons—can be ruined by the actions of a single grower who is oblivious to the risk. As a result, industry efforts at coordinated stewardship should be initiated on a global basis to ensure that unreasonable releases of GM crops do not occur. In the final analysis, it is in the agricultural biotechnology industry's best interest to develop and adhere to its own set of reasonable standards for identity-preserved chains of commerce.

1. Doug Palmer, UN Biosafety Talks Shift Into High Gear, Reuters Newswire, Jan. 25, 2000.

2. Frito-Lay Asks Its Farmers to Plant Only Non-GMO Corn in 2000. Bloomberg Business Newswire, Jan. 27, 2000. In addition to products containing whole corn and soybeans, ingredients refined from GM crops are widely distributed. For example, GM corn is used to make high-fructose corn syrup, a sweetener used in colas, candies, and thousands of other food products. GM soybeans are used to make the food additive lecithin, which is used to enhance texture and is found in the majority of pre-packaged goods. See Justin Gillis, New Seed Planted in Genetic Flap, WASH. POST, Feb. 6, 2000, at H7.

3. See John Burgess, Trade Rules Set on Food Genetics, WASH. POST, Jan. 30, 2000, at A20.

4. B.t. corn carries a gene expressing proteins (the "Cry" proteins) that puncture the gut of caterpillars (corn borers) but is harmless to humans. KIMBALL NILL, GLOSSARY OF BIOTECHNOLOGY TERMS 22 (Technomic 1998).

5. For example, in September 1997, the U.S. Trade Representative ordered seed companies to notify growers to avoid commingling of certain varieties of B.t. corn that were not approved for import into the European Union (EU). Corn growers affected by the order that had planned to sell into export markets were forced to find other options. The uncertainty over approval continued into the following planting season. In March 1998, the U.S. Department of Agriculture's (USDA's) Tim Galvin, Associate Administrator of the USDA's Foreign Agricultural Service, said in an interview: "It's going to be a tough call on whether or not the EU will approve these new kinds of GMOs in time for the harvest." See USDA Sees EU Corn Sales Resuming Soon, Reuters Newswire, Mar. 26, 1998. The uncertainty over approval of B.t. corn continued to the time this Article went to press without hope of immediate resolution.

6. A "tolerance" as used herein specifies the amount of illicit content permitted by regulators in a grain shipment. Certified seed production typically uses a 2 percent tolerance; the EU will allow 1 percent approved GMO content in non-GMO shipments and no tolerance for a variety not approved for import. See Untitled, Reuters Newswire, Jan. 21, 2000 (the EU sets 1 percent tolerance for approved GMOs used in food for human consumption). This creates the incongruous and unappetizing outcome of a regulatory agency that sets a tolerance for insect parts and rat feces, while refusing to tolerate a sequence of DNA that has undergone extensive testing and regulatory review in the United States and found to carry no known scientific risk.

7. U.S. Corn Turned Away From Brazil Port as GM Suspect, Reuters Newswire, Feb. 11, 2000. A purchaser of U.S. corn in Brazil for feed uses turned back from port a cargo ship carrying 27,500 tons of U.S. corn "suspected of being genetically modified" because the supplier failed to provide a certificate that the cargo was guaranteed free of genetic modification. The purchaser stated that it decided "to cancel the purchase and alter the course of the ship, still on the high seas, so that it returns immediately to its port of origin." Id.

8. In Greek legend, Dionysus of Syracuse gave his envious courtier Damocles a banquet with a sword suspended by a long strand of hair over Damocles' head to give him an appreciation of the apprehension that the rich and powerful feel with the ever present risk of a revolt (thereby ruining his courtier's appetite). See Damocles (visited Feb. 29, 2000) http://www.encyclopedia.com/articles/03414.html. The agricultural biotechnology industry and U.S. growers are subject to the threat of such a "revolt" by consumers and authorities abroad.

9. The U.S. Trade Representative may order growers to keep out of the export stream GM crops that are approved in the United States but not in the EU or other major markets. After the EU delayed approval to certain varieties of B.t.corn planted in the United States, all No. 2 whole corn imports from the United States were denied entry to the EU due to the failure to prevent commingling. David Brough, Spanish Grains-Feed Trade Urges Rules on GMOs, Reuters Newswire, Sept. 20, 1999 ("Spain and Portugal import GM soybeans but have spurned use of unapproved varieties of U.S. GM maize"); Biotech Firms Scrap GM Maize Trials in Austria, Reuters Newswire, Apr. 12, 1999. This refusal was the result of activist pressures on the European Commission. See, e.g., John Fagan, BT Corn Issue: Importation of Ciba-Geigy's Bt Maize Is Scientifically Indefensible (visited Feb. 29, 2000) http://www.netlink.de/gen/BTCorn.htm.

10. For simplicity's sake, the term "unapproved GMO" will refer in this Article to a GMO that has not received approval from regulatory authorities in a trading partner of the United States, leading to the rejection of shipments containing that GMO. See, e.g., Organization for Economic Cooperation and Development (OECD), BioTrack Online, Biotech Database (visited Feb. 29, 2000) http://www.olis.oecd.org/BioProd.nsf (contains information regarding biotechnology product approvals).

11. While the authors are not aware of any nuisance case involving an unapproved GMO, they would appreciate electronic mail reports of any new filings relating to nuisances involving any GMO. We note, however, the filing of a trade practices class action on behalf of farmers against Monsanto Company alleging, among other things, a failure to adequately test GM crops in the United States for risks of mixing with non-GMO crops. See Pickett et al. v. Monsanto Co., No. 1:99CV03337 (D.D.C.) (filed Dec. 14, 1999), Complaint P200.

12. Stephen Censky, CEO of the American Soybean Association, Improving Communication From Seed Production Through Retail, Presentation to the Third Annual ABA/CAST/AALA/ACPA Biotechnology Roundtable on the Liability and Labeling of Genetically Modified Organisms, in St. Louis, Mo. (May 26, 1999) (summarized on the NewsCAST website (Feb. 6, 2000)) at http://www.cast-science.org/0002abab.htm [hereinafter Roundtable Presentation of Censky].

13. See, e.g., Thomas Carrato, The Process of Agricultural Genetic Engineering: Regulation, Stewardship or Liability, Presentation to the Third Annual ABA/CAST/AALA/ACPA Biotechnology Roundtable on the Liability and Labeling of Genetically Modified Organisms, in St. Louis, Mo. (May 26, 1999) (on file with author) (summarized on the NewsCAST website (Feb. 6, 2000)) at http://www.cast-science.org/0002abab.htm; see also Bernard D. Davis, Genetic Engineering: The Making of Monsters?, PUB. INTEREST, Winter 1993, at 63-76, reprinted in GENETIC ENGINEERING, OPPOSING VIEWPOINTS (Carol Wekesser ed., Greenhaven 1996).

With newly recognized bona fide sources of harm, such as asbestos or radon, we ordinarily react slowly and then overreact after a lag. But with recombinant DNA we reacted explosively and we continue to debate the issues vigorously—even though the basis for predicting future harm from recombinants has become exceedingly tenuous.

Id.

14. "Outcrossing" is the transfer of one or more genes (i.e., a gene inserted into a plant via genetic engineering) from a domesticated organism (e.g., a crop plant) to a wild organism (usually a species related to the domesticated GMO). See NILL, supra note 4, at 177. For the limited purposes of this Article, outcrossing will also refer in certain contexts to the transfer of synthesized genes to related commercial varieties of agricultural crops. "Adventitious" is an industry term of art for any unintended commingling of seeds. The phrase "commingling" as used in this Article includes both outcrossing and adventitious transfer of seeds.

15. The first wave of agricultural GMOs features "input" traits, such as herbicide or pest resistance, which reduce the need for chemical inputs and improve the grower's profit margin (benefits that are invisible to consumers). The second wave will feature, "output" traits such as increased vitamin or nutrient qualities that will be marketed to consumers. This wave requires identity preservation and promises increased consumer appeal, thus, the future may eventually brighten for GMOs. See C.O. Holiday, President and CEO of DuPont, Remarks at the Biotechnology Panel Discussion, World Economic Forum, in Davos, Switzerland (Feb. 3, 1998) http://www.dupont.com/corp/whats-new/speeches/chad/sp-ch002.html (visited Mar. 1, 2000) [hereinafter C.O. Holliday Speech]. "Our strategy is focused on creating greater economic potential. For example, we are working on output traits that enhance the value of crops. This is in contrast to other companies who are focusing on input traits to yield crop strains tolerant of specific crop protection chemicals." Id.

16. Kimball Nill, Safeguards Utilized to Protect the Environment in Nations That Import Agricultural Commodities, Presentation to Inbio, Costa Rica (Feb. 7, 2000) (on file with author) [hereinafter Kimball Nill Speech to Inbio] (row crops used in producing grain commodities are barely viable when sporadically released into wild, while other introduced species have devastated biological diversity).

17. Roundtable Presentation of Censky, supra note 12.

18. Given the "zero tolerance" for an unapproved GMO and the billions of dollars involved in commodities shipments, there are not likely to be comparable economic threats in organicor non-GMO chains of commerce where a reasonable tolerance should be set by contract. A grower of organic or certified non-GMO that agrees by contract to a low tolerance creates a risk and accepts his own obligation of ensuring sufficient steps for identity preservation at that low tolerance.

19. The definition of "ecological threat" may depend largely upon the observers' assumptions. B.t. is commonly used in organic farming, and Greenpeace and certain organic growers sued the U.S. Environmental Protection Agency (EPA) in 1997 alleging public trust theories over their concerns about EPA permitting B.t. possible overuse. See Greenpeace, Farmers & Scientists File Legal Action Against U.S. EPA Over Its Approval of Generically Engineered Plants (Sept. 16, 1997) http://greenpeace.org/-comms/97/geneng/press/sept 16.html. The agricultural biotechnology industry has taken what it considers to be a precautionary and sustainable approach to protecting this resource. See Eric Sachs, Preserving Technology and Maximizing Benefits: A Balanced Insect Resistance Management Approach, Presentation to the Third Annual ABA/CAST/AALA/ACPA Biotechnology Roundtable on the Liability and Labeling of Genetically Modified Organisms, in St. Louis, Mo. (May 26, 1999) (summarized on the NewsCAST website (Feb. 6, 2000)) at http://www.cast-science.org/0002abab.htm; cf. Fred Gould, Managing Insect Resistance: Practices and Concerns of the Crop Protection Sector, Presentation to the Third Annual ABA/CAST/AALA/ACPA Biotechnology Roundtable on the Liability and Labeling of Genetically Modified Organisms, in St. Louis, Mo. (May 26, 1999) (summarized on the NewsCAST website (Feb. 6, 2000)) at http://www.cast-science.org/0002abab.htm.

20. Norman C. Ellstrand et al., Gene Flow and Introgression From Domesticated Plants Into Their Wild Relatives, 30 ANN. REV. SYS. 539, 554 (1999). The transfer of traits such as herbicide tolerance "will enhance particular fitness components of a weed in particular environments but may (or may not) have attendant costs" (i.e., in terms of fitness, if the herbicide resistance gene weakens the weed in other areas). A "fitness boost" of 5 percent will enhance weediness causing "important practical consequences." Id. at 555.

21. For example, Pioneer Hi Bred International has corn seed research and production in the country where corn originated—Mexico, see Products, Performance, & Info (visited Mar. 1, 2000) http://www.pioneer.com/xweb/usa/pioneer%5Fcontacts/naslist.htm. For its GM corn, the company has submitted a program to the Mexican competent authority setting out careful risk management to ensure protection for wild varieties, including pollen control as well as geographical isolation and temporal isolation to avoid pollen flow when wild corn is fertile. In addition, Pioneer has conducted pollen flow experiments in Mexico to determine how breeding activities can be conducted without the risk of pollinating wild corn, which could lead to transgene escape. See Garcia et al., Pollen Control During Hybrid Maize Development in Mexico, 38 CROP SCI. 1597-602 (1998) (electronic mail communication from Lawrence Zeph, Regulatory Affairs, Pioneer Hi Bred International, Inc. (Feb. 4, 2000) (on file with author)).

22. See, e.g., United Nations Food and Agriculture Organization, Biotechnology in Agriculture (visited Mar. 1, 2000) http://www.fao.org/WAICENT/FAOINFO/AGRICULT/magazine/9901spl.htm.

Biotechnology can contribute to the conservation, characterization and utilization of biodiversity, thus increasing its usefulness. Some techniques such as in vitro culture are very useful in maintaining ex situ germplasm collections of plant species that have asexual propagation (e.g., bananas, onions, garlic) and species that are hard to keep as seeds or in field gene banks. . . . At the same time, however, biotechnology may reduce genetic diversity indirectly by displacing landraces and their inherent diversity as farmers adopt genetically uniform varieties of plants and other organisms.

23. See Malcolm Devine, Herbicide Resistance: The Potential for Outcrossing of Genes to Wild Relatives, Presentation to the Third Annual ABA/CAST/AALA/ACPA Biotechnology Roundtable on Mechanisms for International Protection for Agricultural Biotechnology: Resistant Insects and Superweeds in Washington, D.C. (June 24, 1998) (summarized on the NewsCAST website (Nov. 18, 1998)) at http://www.cast-science.org/9811aba3.htm [hereinafter Roundtable Presentation of Devine].

24. Id.

25. See, e.g., R. Fujita et al., The Extent of Natural Cross-Pollination in Wild Soybean (Glycine soja), 88 J. OF HEREDITY 124-28 (1997) (finding a higher than anticipated natural cross-pollination rate in wild soybean (Glycine soja Sieb. and Zucc.) along the Omono River in Japan due to frequent visits by pollen-carrying insects).

26. See John E. Losey et al., Transgenic Pollen Harms Monarch Larvae, 399 NATURE 214 (1999).

27. Id.

28. Eric Niiler, GM Corn Poses Little Threat to Monarch, 17 NATURE BIOTECHNOLOGY 1154 (Dec. 1999) [hereinafter Niiler]; see also Editorial, Bad Press and Biotech, 17 NATURE BIOTECHNOLOGY 1143 (Dec. 1999) ("More than any other time, there exists a fundamental incompatibility between the nature of scientific progress and its presentation by the media. While science proceeds by slow, incremental advances, media coverage highlights advances as instantaneous and dramatic breakthroughs.").

29. Michael J. Strauss, Bridge News, Jan. 31, 2000 (reporting on new Iowa State study showing minimal risk to Monarchs and positing much greater risk to Monarchs from broad spectrum pesticides) (electronic mail on file with author).

30. Nuler, supra note 28, at 1143.

31. See the Cartagena Protocol on Biosafety to the Convention on Biological Diversity, opened for signature Jan. 29, 2000, available on the Convention on Biological Diversity website at http://www.biodiv.org/biosafe/BIOSAFETY-PROTOCOL.htm (visited Mar. 1, 2000) [hereinafter Biosafety Protocol]. The Biosafety Protocol's impact on U.S. agriculture is still being assessed (the fourth ABA/CAST/ACPA/AALA Roundtable will focus on this issue).

32. See David B. Sandalow, U.S. Assistant Secretary of State for Oceans & International Environmental & Scientific Affairs, The Biosafety Protocol: What It Does and Does Not Do (Feb. 11, 2000) http://www.usia.gov/admin/006/eur514.htm.

Countries without domestic regulatory systems—particularly emerging market nations—can notify the clearing house that they will perform science-based risk assessments on bioengineered products within a specific time frame, thereby providing a structure for decision-making and giving industry a level of predictability in trade that it has not previously enjoyed. . . . The protocol language related to precaution states a self-evident truth: that full scientific certainty is not required for governments to act. That view has been part of the U.S. environmental regulatory process for more than a generation. We think the precautionary approach is an important part of both domestic and international efforts to protect the environment.

Id.

33. Judy Petree, Chaos Without the Math: Part 1, The History of Chaos (visited Mar. 1, 2000) http://www.wfu.edu/-petrejh4/HISTORY chaos.htm (citing Edward Lorenz for the "butterfly effect" whereby a butterfly flapping its wings in Hong Kong can effect the course of a tornado in Texas).

34. Editorial, Controversy of the Year: GM Foods Under Attack, 286 SCIENCE 2243 (Dec. 17, 1999).

35. Saba Salman, Prince Speaks Out on Genetic Foods, TIMES (London), June 8, 1998 (n.p.) (available at http://www.londontimes.com), Prince Charles stated:

Apart from certain highly beneficial and specific medical applications, do we have the right to experiment with and commercialize the building blocks of life? We live in an age of rights—and it seems to me that it is time that our Creator had some rights too. We simply do not know the long-term consequences for human health and the wider environment of releasing plants bred in this way. The lesson of BSE and other entirely man-made disasters on the road to "cheap food" is surely that it is the unforeseen consequences which present the greatest cause for concern. Even the best science cannot predict the unpredictable.

Id.

36. See U.S. Department of Agriculture/Foreign Agricultural Service Notice of Potential Technical Barrier to Trade, FSTD No. 00.0011 (TBT No. 00.0049) Switzerland (Use of Organism/LGMOS) Comment deadline Mar. 1, 2000, enforcement date 2002 (on file with author).

37. Untitled, Reuters Newswire, Jan. 21, 2000. (EU sets a 1 percent tolerance for approved GMOs used in food for human consumption). Undersecretary of Commerce David Aaron was quoted as saying: "The product approval system has effectively broken down [in the EU for GMOs]" and the delay "amounts to an eternity when we consider how rapidly biotech products are developing."

38. The EU's refusals cost the U.S. corn industry an estimated $ 200 million in expected trade to the EU (2.0 to 2.5 million tonnes in annual sales). See Brough, supra note 9; see also Untitled, Reuters Newswire, Sept. 14, 1999 (seed company's warnings to farmers to keep unapproved GM corn out of export channels).

39. The American Soybean Association estimates the annual market for commercial U.S. soybeans to the EU at up to $ 3 billion. Roundtable Presentation of Censky, supra note 12, at 5.

40. Untitled, Reuters Newswire, Apr. 22, 1999 (announcing AgrEvo reports loss of "hundreds of millions of marks" in sales of Liberty Link(R) due to EU's continuing refusal to approve the product for import) (copy on file with author). This discretion in protecting the soybean supply should be commended and should set the standard for all agricultural biotechnology companies.

41. According to a recent newspaper article, "many consumers, given the choice, prefer non-engineered foods." Burgess, supra note 3, at A1, A20. One leading vegetarian food manufacturer has gone direct to its vegan consumers with accurate information about GM food risks and environmental benefits ("it's the environment, stupid"), concerned that "many well meaning people in our health foods industry are being misled." Greg Caton, Biotech Education Series, Introduction and Our Position (visited Mar. 15, 2000) http://www.soybean.com/bseries.htm.

42. In Article 16 of the Biodiversity Protocol, the parties agreed to maintain appropriate mechanisms to regulate, manage, and control risks to prevent adverse effects on biodiversity from releases of living modified organisms produced through modern biotechnology. See Report of the Resumed Session of the Extraordinary Meeting of the Conference of the Parties for the Adoption of the Protocol on Biosafety to the Convention on Biological Diversity: 24-28 January 2000, 9 EARTH NEGOTIATIONS BULL. 1 (Jan. 31, 2000), available at http://www.iisd.ca/biodiv/excop (click on "summary report").

43. THEO COLBORN ET AL., OUR STOLEN FUTURE 219 (Dutton 1996) (environmental activists urging general shift of burden to chemical manufacturers because "the tool of risk assessment is now used to keep questionable compounds on the market").

44. Industrial Union Dep't, AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 618-19, 10 ELR 20489, 20492 (1980) (National Institute for Occupational Safety and Health exceeded regulatory authority in finding cancer risk from "one molecule" of benzene).

45. See, e.g., PETER HUBER, GALILEO'S REVENGE: JUNK SCIENCE IN THE COURTROOM 131-45 (Basic Books 1991) (critique of nuisance cases allowing injunctions based on irrational fear); cf. JEREMY RIFKIN, THE BIOTECH CENTURY: HARNESSING THE GENE AND REMAKING THE WORLD 77-81 (Tarcher Putnam 1999) (critique of risk assessment and field test methodology for GMOs).

46. The prominent ecologist and microbiologist Rene Dubos discussed the evolution of his position regarding the release of GMOs into the environment in a 1977 interview:

For a long time, I had a quasi-religious hostility to experiments combining genes from different organisms, because I felt that this was contrary to the ways of nature. Like other biologists, I used to believe that gene exchange does not take place in nature, except during sexual conjugation between creatures of the same species. I now realize, however, that genetic exchange occurs frequently under natural conditions. . . . Since gene exchange occurs widely in nature, I now feel that it is proper to do it experimentally under controlled conditions.

GERARD PIEL & OSBORN SEGERBORG JR., THE WORLD OF RENE DUBOS 244 (Henry Holt 1990), reprinted from N.Y. TIMES, Apr. 21, 1977.

47. See Executive Office of the President, Office of Science and Technology, Coordinated Framework for Regulation of Biotechnology, 51 Fed. Reg. 23302, 23304 (June 26, 1986). For GM crops, the U.S. Food and Drug Administration (FDA) regulates food safety, the USDA regulates crops and other agricultural products, and EPA regulates plants containing pesticides (under the Federal Insecticide, Fungicide, and Rodenticide Act). See Registration Standards, 40 C.F.R. § 155 (1999).

48. See Gabrielle J. Persley & James N. Siedow, Applications of Biotechnology to Crops: Benefits and Risks (Dec. 1999) http://www.cast-science.org/biotec-ip.htm.

49. The potential benefits of agricultural biotechnology to the environment, if properly managed, could require that we invoke the precautionary principle in favor of approving highly beneficial GMOs in a nation where biodiversity and human health are both threatened by lack of food. In such a situation, delaying food aid for a risk assessment duplicating the FDA would be a Kafkaesque use of environmental law.

50. Willie Vogt, Know Your Neighbors: Best Bet to Avoid Challenges With Pollen From Adjacent Corn Fields Is to Understand What's Been Planted, PRAIRIE FARMER, Feb. 2000, at 20.

51. See WILLIAM L. PROSSER, THE LAW OF TORTS 571, 586 (4th ed. 1971) [hereinafter PROSSER]; see also W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 671 (5th ed. 1984).

52. PROSSER, supra note 51, at 572.

$=S

53. There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word "nuisance." It has meant all things to all men, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie. There is general agreement that it is incapable of any exact or comprehensive definition. Few terms have afforded so excellent an illustration of the familiar tendency of the courts to seize upon a catchword as a substitute for any analysis of the problem; the defendant's interference with the plaintiff's interests is characterized as a "nuisance," and there is nothing more to be said.

PROSSER, supra note 51, at 571.

54. DAVID M. WALKER, THE OXFORD COMPANION TO LAW 894 (Oxford, Clarendon Press 1980).

55. Id.

56. See Commonwealth v. Siemel, 686 A.2d 899 (Pa. 1996) (criminal nuisance conviction upheld for refusal to cut grass to 6 inches per ordinance to prevent allergenic impacts of long grass shedding pollen; cf. Friedman, J., dissenting, endorsing defendant's argument that the ecological advantages of not mowing lawns—the low input, no till strategy—outweighed the nuisance aspects of her 12-inch tall, weed-ridden lawn).

57. There are many analogies that could be drawn to modern GMOs, depending on the advocate's inclinations. For example, should a GMO containing a gene for antibiotic resistance and pest resistance be treated like a threatening domestic animal (see infra note 92, citing case involving a vicious dog) or a reasonable instance of corn outcrossing consistent with historical practices? While the authors consider the existence of a regulatory requirement thousands of miles away sufficient to require a grower to take extra precautions, one could foresee cases in which the offended grower should have found an alternate market for his crops.

58. See RESTATEMENT (SECOND) OF TORTS § 822 cmt. a, at 109 (1977).

59. Id. § 821B cmt. g, at 92.

60. To address the lack of testing standards, the American Crop Protection Association has taken a leadership role in urging the USDA to adopt testing methods to determine when certain GMOs are present. American Crop Protection Association, Life Science Companies Applaud Creation of USDA Grains Lab; Will Join Effort to Validate Testing Methods to Detect Biotech Crops (Nov. 29, 1999) http://www.acpa.org/public/news/pubs_112999.html ("no 'one-stop' test is available to detect all biotechnology-enhanced crops"). The USDA's lab will establish sampling procedures to be used in testing grains and oilseeds developed through biotechnology. See USDA, Grain Inspection Packers and Stockyard Association, GIPSA to Establish Reference Laboratory for Genetically Modified Grains and Oilseeds (Nov. 12, 1999) http://www.usda.gov/gipsa/newsinfo/release/58-99.htm.

61. Brough, supra note 9.

62. The application of public nuisance law to all environmental threats of GMOs was proposed in the seminal article, Barry Furrow, Governing Science: Public Risks and Private Remedies, 131 U. PA. L. REV. 1403, 1439 (1983). This view was expressed by Prof. Barry Furrow over 15 years ago before the widespread marketing of agricultural GMOs.

63. RESTATEMENT (SECOND) OF TORTS § 821B (1977).

64. State ex rel. Colleti v. Errington, 317 S.W.2d 326 (Mo. 1958), cert. denied, 359 U.S. 992, 79 S. Ct. 1122 (1959).

65. Livingston v. Cunningham, 188 Iowa 254, 175 N.W. 980 (Iowa 1920) (a private party may maintain a suit to abate or restrain a public nuisance provided he shows that he has suffered injury different in kind from that suffered by the general public). See RESTATEMENT (SECOND) OF TORTS § 821C (1977).

66. Wade v. Campbell, 200 Cal. App. 2d 54, 60, 19 Cal. Rptr. 173 (Cal. Ct. App. 1962); see also Venuto v Owens Corning, 22 Cal. App. 3d 116, 99 Cal. Rptr. 350 (Cal. Ct. App. 1971) (private and public nuisance can be brought only if plaintiff has private claim, then he can also assert public rights); Union Oil Co. v Oppen, 501 F.2d 558, 570, 4 ELR 20618, 20623 (9th Cir. 1974); Livingston, 188 Iowa at 254, 175 N.W. at 980.

67. See Errington, 317 S.W.2d at 326, cert. denied, 359 U.S. at 992, 79 S. Ct. at 1122.

68. See, e.g., public nuisances in agriculture defined by California Agriculture Code §§ 5904, 5951-52, 5985, 6171-77, 7301, 9621 (infested plants, black currant, Meyer lemon plants, Caprifig trees, camelthorn, noncomplying honey, et al.).

69. See, e.g., CAL. BUS. & PROF. CODE § 17200 (Deering Supp. 2000); Stoiber v. Honeychuck, 101 Cal. App. 3d 903, 927, 162 Cal. Rptr. 194, 206-07 (Cal. Ct. App. 1980) (prohibiting "wrongful business conduct in whatever context such activity might occur").

70. RESTATEMENT(SECOND) OF TORTS § 826(a) (1977).

71. The American Seed Trade Association's website provides a database of grain purchasers accepting GMO traits not approved by the EU. See http://www.amseed.org.

72. See, e.g., Optimum Quality Grains website at http://oscar.its optimum.com. See infra note 103 for help on accessing this site.

73. A global database of wild relatives could be maintained by collaborative ventures among nations, industry, and trade associations for particular crops. The Biosafety Protocol provides for a clearing-house that would allow countries to share data on bioengineered products. See Burgess, supra note 3. Given the potential future economic benefits of this germplasm in the emerging age of genomics, a coordinated approach to conservation could prove a worthwhile long-term investment.

74. Id.; see also Daniel P. Larsen, Combatting the Exotic Species Invasion: The Role of Tort Liability, 5 DUKE ENVTL. L. & POL'Y F. 21 (1995) (recommending the use of public nuisance law to prevent the spread of invasive alien species threatening biological diversity.

75. Kimball Nill Speech to InBio, supra note 16; Larsen, supra note 74.

76. In a developing country that carries a common-law tradition from the era of British colonialism, there may be existing precedents for public nuisance that readily adapt to the threat posed by a GMO. Since there are common links between the precautionary principle and the law of nuisance, this provides an existing remedy for the perceived threats of GMOs while allowing nations to take the benefits immediately without lengthy review of hypothetical risks. Public nuisance law could provide a tool for judicial risk-benefit analysis in the importing nation, on a case-by-case basis, as a form of post-market surveillance of GMOs.

77. See U.S. Officials Brief on Biosafety Protocol, formally available at http://www/usia.gov/admin/006/eur108.htm (on file with author).

78. PROSSER, supra note 51, at 574 n.29, GMO crops do not appear to fit this doctrine, and are likely to require a finding of negligence before being deemed unreasonable.

79. RESTATEMENT (SECOND) OF TORTS § 821D (1977).

80. See Jeff L. Lewin, Compensated Injunctions and the Evolution of Nuisance Law, 71 IOWA L. REV. 775, 779-85 (1986); JESSE DUKEMINTER & JAMES E. KRIER, PROPERTY 960-61 (3d ed. 1993).

81. Trespass is defined in § 165 of the Second Restatement as follows:

One who recklessly or negligently, or as a result of an extra hazardous activity, enters land in the possession of another or causes a thing or third person so to enter is subject to liability to the possessor if, but only if, his presence or the presence of the thing . . . causes harm to the land, to the possessor thereof or to a thing.

RESTATEMENT (SECOND) OF TORTS § 165, at 390 (American Law Institute 1934).

82. See, e.g., Miles v. A. Arena & Co., 23 Cal. App. 2d 680, 73 P.2d 1260 (Cal. Ct. App. 1937) (defendant dusting crops "should have known" chemicals might float in the air).

83. See, e.g., John Innes Centre et al., Organic Farming and Gene Transfer from Genetically Modified Crops (unpublished institutional report on file with lead author) (suggests established seed production standards as a tool for avoiding pollen transfer from GMOs).

84. John J. Doyle & Gabriele J. Persley, Enabling the Safe Use of Biotechnology: Principles and Practice, ENVIRONMENTALLY SUSTAINABLE DEV. STUD. & MONOGRAPHS SERIES, July 1996, at 9 (on file with author) [hereinafter World Bank Report]. International Organizations such as the United Nations Food and Agriculture Organization (FAO) may also play a role in setting standards. In the United States, the American Organization of Seed Certifying Agencies is also establishing appropriate distances that correspond to the expected percentage tolerances set by overseas regulators.

85. See, e.g., Kuhn v. Wood, 36 N.E.2d 1006 (Ohio App. 1941) (pigpen unreasonably maintained in offensive manner when simple preventive steps could be taken).

86. See, e.g., Anderson v. Souza, 38 Cal. 2d 825, 841 (Cal. 1952) (if business is not nuisance per se, abatement relief should choose the least restrictive measure that reasonably relieves plaintiff's inconvenience or annoyance).

87. In a case involving a new seed that provides greater consumer choice (e.g., increased micronutrients such as Vitamin A-enhanced rice), the company involved will have every incentive to maintain identity preservation to preserve the purity of the desired trait. Associated Press, Biotech Rice Could Solve Major Nutritional Problem, Scientists Say, Jan. 14, 2000.

88. Schild v. Rubin, 232 Cal. App. 3d 755, 764 (Cal. Ct. App. 1991) (while some cases present excessive and inappropriate noise constituting a nuisance, neighbor's basketball playing was not a nuisance).

89. Jost v. Dairyland Power Coop., 45 Wis. 2d 164, 172 N.W.2d 647 (Wis. 1969).

90. See PROSSER, supra note 51, at 213. A fitting accompaniment to a nuisance action, res ipsa loquitur shifts the burden of proof to the closest grower using the offending DNA. It is an "uncertain" doctrine—"the source of so much trouble to the court's that the use of the phrase itself has become a definite obstacle to clear thought." Id.

91. See infra note 101, Selma Pressure Treating v. Osmose Wood Preserving Co., 221 Cal. App. 3d 1601 (Cal. Ct. App. 1990) (comparative fault of chemical supplier for failure to warn of proper disposal methods).

92. See, e.g., Rider v. Clarkson, 77 N.J. Eq. 469, 78 A. 676 (N.J. 1910) (fear of vicious dog sufficient for a nuisance claim).

93. Stotler v. Rochelle, 83 Kan. 86, 109 P. 788 (Kan. 1910) (construction of cancer hospital enjoined by trial court, affirmed by Kansas Supreme Court, based on expert testimony that cancer could be carried "by means of insects, and perhaps in other ways"); see also Everett v. Paschal, 111 P. 879, 881 (1910) (where the court enjoined boarding of tuberculosis patients in residential neighborhood despite the trial court's finding of a lack of scientific basis for medical risk, opining: "It is far from being unanimously admitted that fear is a ridiculous malady"). A scathing critique of these opinions and modern parallels can be found in HUBER, supra note 45.

94. PROSSER, supra note 51, at 576 n.52.

95. California Orange Co. v. Riverside Portland Cement Co., 50 Cal. App. 522, 195 P. 694 (Cal. Ct. App. 1920) (orange grower could recover damages for loss of crops and increased labor from cement mill whose dust coated crop; note that two cement plants commingling their cement dust were not joint tortfeasors).

96. Central Georgia Power Co. v. Pope, 141 Ga. 186, 80 S.E. 642 (Ga. 1913).

97. Alonso v. Hills, 95 Cal. App. 2d 778, 214 P.2d 50 (Cal. Ct. App. 1950) (blasting at adjacent site while plaintiff was away caused structural damage and emotional distress).

98. See, e.g., CAL. CIV. CODE § 3294 (Deering 1999 Supp.).

99. See, e.g., Aweeka v. Bonds, 20 Cal. App. 3d 278, 281 (Cal. Ct. App. 1971) (tenant's claim for retaliatory eviction and trespass against landlord).

100. Mangini v. Aerospace-General Corp., 230 Cal. App. 3d 1125, 1134, 281 Cal. Rptr. 827, 832, 21 ELR 21429, 21433 (Cal. Ct. App. 1991).

101. 221 Cal. App. 3d 1601 (Cal. Ct. App. 1990) (state attorney general on behalf of state and regional water boards sued end user for nuisance case, prompting distributor of the chemicals to cross-complain for equitable indemnity against suppliers of chemicals and treated wood). Outcrossing from GMOs is analogous to seeping chemicals in that both are at least arguably foreseeable forms of potentially detrimental "disposal" to the environment.

102. O.C. Patterson v. E.I. DuPont de Nemours & Co., No. B113317, 1999 WL 117693, *4-*7 (Cal. App. 2d Dist. Feb. 25, 1999) (depublished by order of court).

103. See website of Optimum Quality Grains at http://oscar.itsoptimum.com for "identity preserved" grain contracts used by the Dupont family of companies (Optimum Quality Grains, Pioneer Hi-Bred International, and Protein Technologies, Inc. (PTI)) with growers for corn, soybeans, and sunflowers. Click on "opportunity search" (no password required). Guests to the site can enter zip code 50312, soybeans, Crestland STS program, and select "view sample contract" in order to view contracts for non-GMO soybeans, with a choice of 20-foot border rows or to plant the STS soybeans "physically separated from other varieties" (with no specific planting distance).

104. The grower agrees to indemnify PTI for claims arising from the contract, which presumably would include nuisance claims against the grower and the Dupont family of companies for unintended commingling of unapproved varieties with export crops. A disclaimer of warranty and a limitation on liability are also included. For further citations discussing the legalstandards for a release of the negligence of a party marketing a product without warnings regarding proper use, see RESTATEMENT (THIRD) OF TORTS § 398 et seq. (Apportionment of Liability Proposed Final Draft (Revised) Mar. 22, 1999).

105. If a grower could reasonably interpret this as requiring him to avoid saving seed to send to his cousin overseas, then it is perhaps inadequate to achieve the intended purpose of avoiding commingling of his harvested crop with those bound for export.

106. See http://oscar.itsoptimum.com for "identity preserved" grain contracts with growers for corn, soybeans, and sunflowers. The risks to neighboring crops are not well-defined at present. The grower must indemnify Optimum, however, for claims arising from the contract, which presumably would include nuisance claims against the grower and the Dupont family of companies and unintended commingling of unapproved varieties (for which there is currently zero tolerance in nations where approval is pending).

107. See J.W. Looney, Warranties in Livestock, Feed, Seed, and Pesticide Transactions, 25 U. MEM. L. REV. 1123 (1995).

108. A Panamax class vessel transports grain in bulk shipments, in contrast to "container" ships or shipment of packaged goods.

109. Michael Dunn, Undersecretary for Marketing & Regulatory Programs, USDA, Presentation to the Conference Food Chain of Tomorrow in St. Louis, Mo. (Jan. 18, 2000).

110. See, e.g., Morrisville Comm'n Sales, Inc. v. Harris, 451 A.2d 1092, 1093 (Vt. 1982) (revocation of acceptance granted under Uniform Commercial Code § 2-608 where seller represented toothless, non-lactating dairy cow to be "clean, good, healthy, ready to be a milker" despite complete inability to chew grain).

111. States or provinces in overseas markets with federal systems may exercise authority to ban GMOs, thereby adding another layer of regulatory complexity to a complex situation. There are reports that Brazil's largest agricultural region (Rio del Grande Sul) is trying to make itself GMO free. This raises the spectre of U.S. leading competitors in soy exports using non-GMO demand to take the market sharefrom U.S. growers unable to segregate to the specifications of the EU, Japan, or other markets. Untitled, Reuters Newswire, Sept. 28, 1999.

112. World Bank Report, supra note 84, at 9.

113. See, e.g., CAL. FOOD & AGRIC. CODE §§ 52851, 52901 et seq., (Deering 1997) ("nonapproved" varieties of cotton require permit to protect "integrity of approved Acala or Pima cotton" in single variety cotton districts).

114. Id. § 5401.

115. See Farmland Information Library's State Farmland Protection Database at http://www.farmlandinfo.org/fic/laws/kwagdis.html for an excellent listing of districts and other statutes affecting farmland. Various states take differing approaches to districting and Internet data: see, e.g., the Ohio enabling statute (OHIO REV. CODE ANN. §§ 929.01 et seq. (Banks-Baldwin Supp. 1999) available at http://orc.avv.com/title-9/sec-929/index.htm; the Texas map of agricultural statistical districts at http://www.io.com/-tass/distmap.htm; and the North Carolina summary of commodities by county at http://www.agr.state.nc.us/stats/cntysumm/index.htm.

116. See Farmland Information Library's State Farmland Protection Database at http://www.farmlandinfo.org/fic/laws/kwagdis.html (benefits of district may include "protection against unreasonable government regulation and private nuisance lawsuits").

117. Irvine v. Citrus Pest Dist., 62 Cal. App. 2d 378, 144 P.2d 857 (Cal. Ct. App. 1944).

118. CAL. FOOD & AGRIC, CODE §§ 5428, 5430, 5462, 7305; Riverside County v. Title Ins. & Trust Co., 202 Cal. 333, 259 P. 759 (Cal. 1927).

119. See, e.g., Annotation, Constitutionality, Construction, and Application of Statutes Relating to Testing or Sampling of Agricultural Fertilizers, 105 A.L.R. 348 (1936 Supp.), 147 A.L.R. 765 (1943).

120. CAL. FOOD & AGRIC. CODE § 52251.

121. Id. § 52001.

122. See, e.g., MO. ANN. STAT. § 537.295 (West Supp. 2000) (exempting existing agricultural operations from nuisance liability that arises from "changed conditions"); Idaho has a similar statute, IDAHO CODE §§ 22-4501 et seq. (Michie Supp. 1999), that is available online at http://www.law.utexas.edu/dawson/nuisance/id_nuis.htm. See also Payne v. Skaar, 127 Idaho 341, 900 P.2d 1352 (1995) (agricultural feedlot operation not protected where surrounding area is not urbanizing).

123. See, e.g., Farmland Information Library's State Farmland Protection Database, State Farmland Protection Statutes, at http://www.farmlandinfo.org/fic/laws/fpkeytab.html. For additional information on right-to-farm laws, see Terence J. Centner, Anti-Nuisance Legislation: Can the Derogation of Common-Law Nuisance Be a Taking?, 30 ELR 10253 (Apr. 2000).

124. See, e.g., Bormann v. Board of Supervisors in & for Kossuth County, 584 N.W.2d 309, 29 ELR 20235 (Iowa 1998).

125. See MO. ANN. STAT. § 537.295.

126. H.F. No. 2614, 81st Leg. Sess. (1999-2000) (to amend MINN. STAT. §§ 18F.01, 18F.02 (1998).

127. The bill provides as follows:

A manufacturer that violates paragraph (a) is strictly liable in tort to an agricultural grower who suffers damage due to cross-pollination of the GMO seeds or crops with the grower's non-GMO seeds or crops. Any liability in tort of the grower of the genetically modified crops is secondary to the primary strict liability of the manufacturer under this paragraph. This paragraph does not limit any liability of the manufacturer under any cause of action not based upon this paragraph. The provisions of this paragraph are not subject to waiver, by agreement or otherwise.

Id.

128. To qualify for labeling as non-GMO under the proposed bill, "all GMO-free crops, livestock, or partially processed components must be kept fully separate from other crops, livestock, or partially processed components through all stages of harvest, storage, transportation, and processing until the final products are in packaged form in a properly labeled container." The processor would be required to maintain records of the separation at all stages that are available for inspection by the commissioner. Id.

129. Electronic mail message from Kimball Nill, American Soybean Association (Jan. 30, 2000) (on file with author).

130. Untitled, Reuters Newswire, Sept 14, 1999.

131. Thomas P. Redick et al., Private Legal Mechanisms for Regulating the Risks of Genetically Modified Organisms: An Alternative Path Within the Biosafety Protocol, 4 ENVTL. L. 52 (1997) (alternative path to regulation using license agreements to dictate environmental protection for GMOs contractually (citing EPA's requirements for B.t. crop "refugia")).

132. Optimum website, supra note 103.

133. Id. While soybeans are a self-pollinating species of crop that presents less risk of outcrossing than corn, rapeseed, or other common commodity crops, DuPont requires a 20-foot border row between its crop and other crops at risk from commingling.

134. See, e.g., Genetic and Crop Standards of the American Organization of Seed Certifying Agencies (AOSCA) at http://aosca.org.

135. Untitled, Reuters Newswire, Sept. 14, 1999.

136. C.O. Holliday Speech, supra note 15: "I can't overemphasize the importance business systems will play in enabling biotechnology to bear fruit. We increasingly believe that the systems will be as important as the technology, perhaps more so."

137. Paul Hawken et al., NATURAL CAPITALSIM: CREATING THE NEXT INDUSTRIAL REVOLUTION 317 (Little Brown 1999) (citing Prof. Stuart Hart on "discontinuity" imposed on businesses from outside forces inducing strategic shift that "leapfrogs" over incremental change, Stuart Hart, Beyond Greening: Strategies for a Sustainable World, HARV. BUS. REV., Jan./Feb. 1997, at 75).

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