Weiss Proposes Legal Standard for Judging International Environmental Claims

November 18, 2003

Weiss said current standards for judging environmental regulations and toxic torts have a "major disconnect."

Europe may be trying to ban genetically modified foods from the United States in part because of fears of environmental and health effects, but their resistance to the idea is likely to fade as they develop their own technologies to genetically alter crops, said Georgetown University professor Charles Weiss, who spoke at the law school at the invitation of the Virginia Society for Law and Technology. To mend the cross-Atlantic divide, Weiss proposed a legal standard for regulating environmental issues that are "scientifically uncertain," such as genetically modified organisms (GMOs), climate change, oil drilling in the wilderness, and the effects of pollutants. Agreement on the GMO issue is crucial, Weiss said, because Europe's hesitance could end up hurting Africa or other developing countries that would benefit from improved agricultural technologies.

“I think that the best standard is ‘reasonable belief' [that something could cause or has caused harm],” said Weiss, Chair of Science, Technology and International Affairs at Georgetown. “I feel that the law on both sides of the Atlantic is headed in this direction and I think it's a pretty good solution.”

In 1998 the European Union imposed a de facto moratorium on imports of genetically modified crops or seeds, and the United States is preparing to appeal to the WTO Dispute Settlement Process, claiming the embargo is a discriminatory trade barrier, he said. Trade restrictions are allowed for environmental or health reasons, but not if the restrictions are applied unequally.

The United States has more than 120 million acres of genetically modified crops, primarily cotton and corn designed with a systemic insecticide derived from bacteria, allowing farmers to forgo using environmentally unsafe insecticides; and “Roundup- ready” soybeans that are resistant to herbicides, allowing farmers to rid crops of weeds. The gene taken from the bacterium and transferred to the corn and cotton limits insects' ability to process food. “It's good for the environment, it saves the farmers money,” Weiss said.

“You have been eating genetically modified food for the last 10 years,” he told the audience. Overall there appears to be no ill effects from the GMOs on the environment or on consumers. But there's enough “worrisome data” to indicate that some people may have allergies, or that the GMOs may contribute to the possibility of “superweeds”—weeds that get some of the soybean's gene through pollen, making them resistant to herbicides as well. The legal aspects of blocking GMOs from Europe “hinge on the level of scientific uncertainty.” How certain are we that GMOs could be hazardous?

When scientific uncertainty is involved, international lawyers, policymakers, and environmentalists must consider how to balance the costs and benefits of a given environmental regulation, taking into account environmental exceptions to international treaty obligations, domestic environmental regulations, and domestic toxic tort actions.

In the case of the GMOS, “the U.S. is saying we need science-based rules,” he said. “The European Union is saying there should be a precautionary approach.”

Monsanto, the biotech company that engineered the Roundup-ready soybeans, pushed Europe to import GMOs, despite widespread resistance, in what Weiss called a bad business move. He said Europeans see GMOs as a threat to organic farming, believe that genes shouldn't be mixed, are concerned about environmental effects, feel GMOS may be a threat to the rural landscape and want to keep American agri-business out, and “there's also a strong whiff of agricultural protectionism.”

Technological protectionism is also at work, Weiss added—there's a sense Europeans are up against an American juggernaut, and if they can stall, they can catch up. Such was the case with nuclear power, Weiss said, where at first European nations made a strong stand against it, only later to use it when they were technologically able.

“The bottom line is, this is a big deal. American agricultural profits depend a lot on exports,” Weiss said. Africa will suffer because Europe 's resistance will hurt biotech companies in the GMO business, and in effect it will “torpedo the advance of a technology they need.

“Because Europeans don't want to accept miniscule risks to themselves, they are going to deny to Africans what they are going to need in the long-term,” he said.

Weiss based his proposed legal standard to judge controversial environmental issues on the standards of proof required for a variety of legal actions. For example, the standard for convicting an American of a crime is “beyond a reasonable doubt.” A “preponderance of evidence” is required for civil suits, and “clear and convincing” evidence is required for quasi-penal civil actions such as disbarring a lawyer or firing a judge. For a search and arrest,"reasonable belief" or "probable cause" is required, and for a “stop and frisk,” "reasonable suspicion" is required.

In judging environmental regulations, “the basic standard is the rule should not be ‘arbitrary and capricious'”—defenders of a regulation would have to show a rational connection to science, but not necessarily show that it is backed by scientific consensus. International environmental accords led to the “precaution principle,” a counterweight to the insistence on rigorous scientific proof, which is almost never available in such cases. There are 19 versions of the principle, Weiss said, and “whether it's weak or strong, neither of these versions is a guide to action.”

The WTO has thrown out cases that lack scientific merit—Europe wanted to block American beef that was made using growth hormones, but failed because the WTO said a “risk assessment must bear a rational and objective relationship.” Weiss said his proposed standard of reasonable belief allows for a science-based standard.

He said the debate over toxic torts—where defendants are alleged to be statistically associated with an increased rate of a particular type of harm that is not amenable to eyewitness testimony-was “infecting the discussion” on GMOs, making it more difficult for Europe and the United States to agree.

Toxic torts were designed to provide compensation to harmed parties and to urge companies to think cautiously—in other words, to “privatize the precautionary principle,” Weiss said. The standard of proof in toxic torts is the “preponderance of evidence,” but epidemiologists who are called upon as expert witnesses in toxic-tort cases don't follow that standard. Instead they look for evidence that will provide a 95-percent confidence level, because they want to be immune from defense lawyers' attacks on the stand. This raises the standard from “preponderance” to “clear and convincing,” Weiss said. Weiss called the schism between using weaker evidence for judging environmental regulation and a “preponderance of evidence” for proving toxic-tort cases a “major disconnect.”

Europe is operating on several tracks when it comes to GMOs—the legal track, where European courts are leading to a standard similar to his proposal, while using extra-legal methods to prevent GMOs from being imported, Weiss said. In the meantime farmers are smuggling in seeds (crops in Britain have already tested positive for GMOs). Weiss said he knew of no European law that banned growing genetically modified crops, despite the ban on importation. Furthermore, the EU is unhappy that some areas of Europe have declared they want to be GMO-free. “They seem to be playing a double game,” he said. “I think eventually they want to introduce GMOs.”

A student in the audience who worked as a chemical engineer for Monsanto pointed out that the company has a score of patents on seeds, crops, and the technologies for modifying foods. Europe could easily run afoul of these patents if they try to build their own processes. He said Europe already uses GMOs: “If you have European cheese, you've just consumed a GMO.”

Third-year law student Rachel Doughty noted that all soy in America is now classified as genetically modified by Europe because of “gene flow” from modified to unmodified crops, and cited European concerns about what this would do to Europe's crops. She said GMOs should be labeled as such, and criticized Monsanto for focusing on crops not applicable to hungry nations.

Weiss responded that gene flow takes place only under certain circumstances, and scientists may be able to limit its effects with further research. He agreed that food labeling was on the horizon, but noted that the public could react poorly to it as they did with irradiation, which wasn't used for decades because of the public's fears, but is now being used again because of its benefits (other methods proved to have carcinogens).

He said a good example of this kind of hysteria happened when some genetically modified corn got into taco shells and 26 people claimed that they had allergic reactions. After testing, scientists concluded the reactions weren't due to the corn.

The benefits of GMOs for developing countries outweigh the relatively low risks, Weiss said. “A lot more money is going to have to be spent on agricultural research. They're going to need it—that's a fact.”

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