Starlink's Lessons Learned: Past, Present, and Future

Thomas P. Redick

Thomas P. Redick is with the firm Gallop Johnson & Neuman, L.C. in St. Louis. Tom is a vice chair of the Section's Agricultural Management Committee and Toxic Torts and Environmental Litigation Committee.

The 9th Section Fall Meeting in St. Louis featured a panel discussion entitled Environmental Liability for Agricultural Biotechnology: The Nuances of Nuisance, featuring James Underwood of Akin Gump Strauss, Hauer & Feld, LLP, Dallas, and Stephen Censky, CEO of the American Soybean Association (ASA). (Monsanto's scheduled speaker was ill and could not present a paper.)

The focus of discussion was Starlink™ corn, a genetically engineered corn that was recalled by the United States Environmental Protection Agency (EPA), which was sold by Aventis, a domestic subsidiary of a French multinational company. To date, the estimated cost of the recall is projected to be $1 billion.

Mr. Underwood provided a detailed summary of the events involved in agbiotech's biggest disaster to date, the recall of Starlink™ corn. Underwood reported that mistakes by regulators, seed sellers, and growers led to commingling of Starlink™.

Stephen Censky offered "lessons learned" remarks. According to Mr. Censky, the most important lesson of Starlink™ is the need for effective communication of a "state of the art" identity preservation program, which will limit nuisance liability.

The Starlink™ Litigation: Background and Update
Mr. Underwood, counsel for two corn processors sued (and suing) in the Starlink™ litigation, offered an insider's view of the litigation. EPA approved Starlink™ for feed, not for food, asking Aventis to set up "identity preservation" to keep Starlink™ out of the food supply.

EPA approved Starlink™ for "feed only" without ensuring that adequate identity preservation measures were established. This mistake was compounded by EPA's subsequent imposition (issued from a scientific advisory panel during the throes of the recall of Starlink™) of zero tolerance Starlink™ commingling.

The health risks of Starlink™ appear minimal, with no confirmed cases of personal injuries. Allegations abound, including one California case of anaphylactic shock allegedly caused by Starlink™. Consumer class actions are pending in various courts (many are consolidated in Chicago under federal Multidistrict Litigation Rules) seeking refunds of money spent in buying food tainted with Starlink™. Farmer class actions generally include a prayer for the recovery of the diminished value of the farmers' corn and injunctive relief in the form of an order "requiring abatement of the nuisance created by Aventis by requiring Aventis to decontaminate all soil, farming equipment, storage equipment, harvest equipment, transportation facilities, grain elevators, and non-StarLink seed supplies to prevent future contamination for the 2001 growing season and beyond."

The law of nuisance is framed for flexibility, covering everything under the sun - even a cockroach baked in a pie. For purposes of nuisance law, however, the drifting of Starlink™ pollen need never be shown to cause human injury. The crop loss of neighbors may be sufficient. The economic impact of Starlink™ could support a nuisance claim for private nuisance where a grower's use of an unapproved biotech crop has caused economic harm to a neighbor's crop. The 660-foot separation distance for Starlink™ - a buffer zone established to prevent pollen drift - could set a standard for reasonable behavior.

The "right to farm" statutes in existence in all 50 states (see Farmland Information Library's State Farmland Protection Database, State Farmland Protection Statutes, at http://www.farmlandinfo.org/fic/laws) are often narrowly construed as covering only existing farm uses that cause odor or annoyances. Negligent farming (e.g., growing an unapproved variety too close to neighbor's similar crops) could lead to liability. Moreover, huge economic risks might merit exceptions to the right to farm. Finally, the court could declare a statute unconstitutional as a "taking" of the neighbor's property. Bormann v. Board of Supervisors, 584 N.W.2d 309, 29 ELR 20235 (Iowa 1998).

The grower and seed company sued for creating a massive economic nuisance may raise the "economic loss" defense. There are cases holding that "severe pecuniary loss" may give rise to a nuisance claim. See, e.g., Nebraska Innkeepers, Inc. v. Pittsburgh-Des Moines Corp., 345 N.W.2d 124, 129-30 (Iowa 1984). Given the magnitude of the economic harm caused by an unapproved variety and the added element of inadequate disclosure to farmers that may be present, the consumer fraud statutes of many states might also be invoked as well as common law public nuisance.

Improving Communication with Growers
As CEO of ASA, Stephen Censky provided "the story before the story" of Starlink™ and also offered a glimpse at a more cautious future. ASA warned 11 biotech seed companies in late 1997 that the European Union (EU) would turn away shipments commingled with unapproved varieties of genetically enhanced crops. Corn shipments to the EU since 1997 have been channeled away from export shipments in the hope of preserving the flow of corn export to the EU; but shipments of whole corn have not made it to the EU.

Aventis asked ASA in 1998 to follow a detailed identity preservation system, including the contested items of a high premium for growers, dedicated domestic facilities to divert the genetically engineered soybeans away from export channels, and an assumption of liability for any nuisances or other liability that growers and Aventis might jointly cause. Aventis decided not to market the Liberty Link soybean, thereby serving the public interest by acting to protect export markets.

The Starlink lesson of "split approvals" for non-food biotech uses has not been completely learned. Industrial and pharmaceutical applications of agricultural biotechnology require identity preservation methodologies. To maintain identity preservation at the level of "Zero Tolerance" for unapproved DNA molecules (a level the EPA panel endorsed for Starlink™), strict measures should be maintained. ASA has overseen development of identity preservation methodologies that can be adapted to crops other than soybeans.

Eventually, the U.S. Department of Agriculture could set standards for identity preservation for (1) varieties of genetically engineered crops that lack overseas approvals; and (2) the few varieties of industrial and pharmaceutical crop production systems that are entering the marketplace. The latter, in particular, appears to present a risk of repeating the food-commingling debacle that led to the Starlink™ recall.

Both speakers agreed that biotech crops would provide great benefits in food safety, environmental protection of soil, and reduction of pesticide and mycotoxin residues. To receive these benefits, the world will need identity preservation.