Last month, several environmental organizations, including the Center for Food Safety and the Center for Biological Diversity, filed suit against the Animal and Plant Health Inspection Service (APHIS) in federal court in Florida. The plaintiffs are asserting four claims alleging, in essence, that APHIS violated the National Environmental Protection Act (NEPA) and the Food, Conservation, and Energy Act of 2008 by granting permits to ArborGen to field test genetically modified eucalyptus trees without first preparing an environmental impact statement (EIS).

On May 12, 2010, APHIS granted ArborGen and affiliated paper companies permission to perform field trials of genetically modified eucalyptus trees on 28 sites across seven states. Approximately 200,000 trees are, or are scheduled to be, planted on 300 acres in Texas, Louisiana, Mississippi, Alabama, Georgia, Florida, and South Carolina.

Although eucalyptus trees are not native to the United States and generally thrive only in very warm climates, they have been commercially grown in Hawaii and Florida for some time. ArborGen’s genetic modifications, however, are intended to allow the trees to be commercially grown further north by making them tolerant of temperatures as low as freezing. The trees are also modified to sterilize the male plants to prevent unintended invasion and to lower the lignin content, making them more suitable as raw materials for paper products. Eucalyptus trees provide valuable raw materials for pulp, paper, and bio-fuels and can be harvested faster than traditional hardwoods.

These field trials mark the first time that APHIS has approved genetically modified forest trees for open testing. Critics of the field tests, including the Georgia Department of Natural Resources and Florida Exotic Pest Plant Council, have expressed concerns that the eucalyptus trees can be particularly invasive because they are known for their longevity and pollen spread, and that they can be harmful to the natural environment because of their heavy water use, flammability, and susceptibility to harmful fungi.

Despite receiving over 12,000 objections to the trials, APHIS determined ArborGen could go forward after conducting only an environmental assessment, rather than the more involved EIS. Consequently, on July 1, 2010, the plaintiffs filed suit in federal court seeking to set aside the permits and obtain an injunction preventing APHIS from allowing any of the trees to flower pending the completion of an EIS. Plaintiffs are also seeking a declaration that APHIS violated NEPA and the Food, Conservation, and Energy Act. APHIS has not yet filed an answer.

This dispute could have potentially important impacts on the regulatory approval process for genetically modified crops, particularly after the recent U.S. Supreme Court decision in Monsanto v. Geertson Seed Farms.

Today’s post authors are John P. Mandler , Jess R. Phelps, and Rhyddid Watkins.