Ag Law News

How the Roundtable on Sustainable Biofuels has Addressed GMOs

By Sebastien Haye, Acting Executive Secretary, Roundtable on Sustainable Biofuels/Ecole Polytechnique Federale de Lausanne-Energy Center, Lausanne, Switzerland, & A. Bryan Endres, Associate Professor, University of Illinois, Urbana, Illinois, USA

When the RSB Steering Board issued the first draft principles for sustainable biofuel production in May 2007, the question of how to address GMOs was already being considered.  At this time the use of GMOs was inserted into Principle 11 of the RSB standard, which required the use of GMOs in biofuel feedstock production to be fully transparent to downstream stakeholders and users.

On this basis, RSB constituencies decided to establish a group of experts to further develop the GMO requirements in Principle 11 into specific criteria. While transparency remained a central aspect, stakeholders further developed the language to allow the use of GMOs while making sure there were appropriate safeguards in place to prevent any unintended adverse effects to the surrounding environment and the people.

In Version Zero of the RSB Standard, which was published in August 2008, Criterion 11e indicated that “The use of genetically modified: plants, micro-organisms, and algae for biofuel production must improve productivity and maintain or improve social and environmental performance, as compared to common practices and materials under local conditions. Adequate monitoring and preventative measures must be taken to prevent gene migration.”

In Version Zero, the notion of bringing a clear environmental or social benefit compared to non-GMO alternatives was included as a central element, and continues into the current version of the RSB Standard (Version 2). This means that the RSB does not prohibit the use of genetically modified crops or micro-organisms as long as there is a demonstrated benefit for the people or the planet, for instance by allowing plants to grow on non-fertile soil or to require less water.

In addition to this, minimum requirements under current Criterion 11b of the RSB Principles & Criteria were added that “Participating Operators using GMOs shall take measures to prevent migration of genetically modified material and shall cooperate with neighbors, regulatory and conservation authorities, and local stakeholders to implement monitoring and preventative measures. Crop-specific and technology-specific mitigation strategies shall be utilized.”

The intent of this language was to indicate that operators using GMOs are responsible for ensuring that genetically modified material does not migrate out of the production site and negatively impact the surrounding environment and activities. In addition, disclosure of the GM material being used and cooperation with farming neighbors, local regulators, and local environmental groups is required.  This additional language about cooperation was included at the urging of representatives of the US agricultural industry, as a means to be consistent with the evolving law regarding co-existence.

After the publication of Version 2 of the RSB Standard (5 November 2010), additional concerns about the language were raised by some members of the US agriculture industry. Represented by specialized lawyers, they argued that these requirements could create an additional liability burden upon users of GMOs, compared to the existing legislation in the US, and be in contradiction with coexistence rules.

In some respects, it may be appropriate for voluntary standards such as the RSB to include language that may differ from baseline legislation to ensure environmental, social and economic sustainability, provided that it does not create an irreconcilable conflict with the law.  Stakeholders who participate in the creation of such standards work hard to find appropriate compromise language to meet the needs of sustainable production systems while enabling compliance with the law.

This is why in November 2010, the RSB Steering Board decided to establish a small group of experts, with the following objectives:

-       Evaluate and assess what (if any) additional GMO-related liabilities could be created by RSB certification for participating operators under the current approved Version 2.

-       Recommend enhancements to RSB guidelines for risk mitigation regarding GMOs, in order to minimize potential liabilities.

-       Ensure that the RSB standard, in going beyond regulatory requirements, does not create unreasonable liability burdens on participating operators based solely on management decisions and without regard to the environmental, social and economic impacts of those management decisions.

The expert group made progress on the identification of potential liabilities due to the current wording of requirements under Principle 11. As a conclusion, it recommended a modification of the text of Criterion 11e as follows:

“Participating Operators using GMOs shall take measures to prevent migration of genetically modified material and shall cooperate with neighbors, regulatory and conservation authorities, and local stakeholders to implement monitoring and preventative measures to prevent migration of genetically modified material. Crop-specific and technology-specific mitigation strategies shall be utilized”

Despite this work, some concerns have been raised that the expert group that examined the issue did not represent as extensive a range of stakeholders as initially hoped, and that it will be important to include comments from the RSB membership to ensure broad agreement before adopting the new language. In addition, the expert group focused almost exclusively on situations in the United States, making it somewhat difficult to evaluate the applicability of the language to the RSB’s global standard.

In June 2011, the RSB Steering Board decided to include discussion of the proposed changes of Principle 11 during the process of its next regular review of the Principles & Criteria (report here: http://rsb.epfl.ch/page-78534-en.html).  This process will be launched in 2013, and based on member and public consultation, the RSB constituencies will decide whether to modify the wording of Criterion 11e as suggested by the expert group. Until this revision is undertaken, the approved wording of Version 2 (March 2011) remains valid.

For any further information about the RSB Standards please contact Sebastien.Haye@epfl.ch