Social Subcommittee Meeting Notes on 5.16.4 Discussion

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Jennifer Trucks

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Dec 12, 2012, 9:07:47 AM12/12/12

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LEO-4000: Conference Call of the Social Subcommittee December 11, 2012 11am CT

Attendees: Jennifer Trucks, Sigrid Peterson, Doug Constance, Bryan Endres, Don Hodge, Jody Endres, Michael Keyes, Grace Gershuny, Tom Redick.

Agenda: Discussion about genetic migration issue (5.16.4 in draft standard) in the social standard; Tom R. has a position paper on co-existence of GM crops and non-GM tested crops and wants to present his position/critique, then Bryan will present his position

Process: Tom presents, Bryan presents, Tom replies, Bryan replies, Committee Discussion

Background: Tom sent "co-existence" paper to most members of the group; American Ag Law Association

Tom

Asks group for any thoughts on his paper, coming from perspective as "grower-lawyer" working with GMO and non-GMO growers; USDA almost got to consensus on this; would like to have this committee understand this report; "your own government" is invested in this; when you put a grower hat on, you have to plant your seed; and you have a neighbor who signed a contract with Whole Foods that now requires x organic, even though you've been certified for years under USDA for organic; from a grower's perspective, if you read through the standard, my neighbor says I have to plant it at 1 mile buffer
One thing we need to do is have some growers, maybe someone who grows both or lives in a neighborhood with organic neighbors…what would you do if you participated in this standard; the most you can ask either grower to do is to cooperate and communicate and there may be a way to work it out; could be part of the farm plan
Farmers buy seed six months in advance and can't grow it because of a new contract signed by neighbor grower with a non-GMO at .09%
Stunned to see the same struggle here as seen in Roundtable on sustainable biofuels
Leave it at "cooperate, communicate" at Platinum level, maybe "before you buy your seed"
Government AC21 report

Bryan

Was on subcommittee of AC21 on compensation committee (compensating farmers for suffering economic consequences from genetic migration); although the vote was close on actual report, when you read statements from different members of the committee, there was a certain amount of descent ion that AC21 final decision
True that national organic program does not require testing for it to be required certified organic
Gerber - started rejected organic products that had GM content in it. This is nothing new
Our standard does not put in place a zero tolerance or fenced-in requirement; it speaks to impact; producers must minimize genetic migration where neighbors will be negatively affected; there is really no difference because its always talking about minimizing impact
In our scholarship, we talk a lot about legal duties (mandatory obligation); do you have a legal duty to fence in your materials; that is very different than what we are talking about here in a voluntary standard; if you are going to claim that you are sustainable, that doesn't mean you can't go beyond the status quo for sustainable
1) this is not creating zero tolerance, only dealing with negative impact; 2) this goes to a sustainability standard, which is beyond a legal mandate

Tom Reply

Tom red 2005 article from Bryan; been a 7-year conversation; would a common law court take this standard, read it, and interpret it as a "due care" (?) approach
If we do a national standard and it imposes a duty to prevent migration (not just cooperation), like this one does, but implement mechanisms to minimize; yes, that is impeding the property right of a neighbor
Suggestion to move cooperate up to the front
This standard is a big and "disturbing" type of development for the standard to implement
Options: you can just let it go to public comment or set up some kind of expert dialogue (sub-discussion) that we could get the people we know (on both sides); Expert dialogue would benefit from having producers and lawyers together

Bryan Reply

Tom's point (28 years of litigation involving ANSI standards); ANSI standards are, in fact, picked up by courts and used to create standards of due care
But this ANSI standard does not create a baseline standard for industry as a whole, but to those that want to call themselves sustainable; it is speaking to a subset of growers; the likelihood that this would be picked up by a court as establishing minimum duty of care is improbable
If we are thinking about common law courts; they have sorted out something called "diminimus" (sp?) - there is always allowance for some sort of tolerance (courts interpret this by situation); but highly unlikely it would ever get to that point
Although there was this RSB working group, in reality the RSB is highly unlikely to change their position (based on discussions Bryan has had with them)
Property rights: those that Tom brings up; "this brings up property rights of person who wants to create GM crops"; but rights work both ways; and these rights need to get balanced
Options for Producers: idea of forming another expert dialogue is not worthwhile; when we tried to create it for RSB, it was difficult to find many people; And many of the experts on this have chosen to leave the process and therefore the discussion; we already have an expert group on this social call; we have capacity and expertise; would like to have debate within Social committee; take it to full committee; then go to public comment

Questions

Grace

When we put this out for review (to whole committee and public comment), we should identify the pieces instigating disagreement; "this was consensus of committee" but there were significant objections on both sides, here they are, and we would like public to weigh in
Grace agrees with Bryan's position; that's her view; but it is important to be transparent about points of significant contention and rationale

Does this apply only to organic and non-GMO agriculture. If so, we don't need this in the standard; making the point that Bryan's point about this "not applying to all of Ag"

Jody

Picking up on what Tom said, "there is no way that a biotech grower can comply,"I disagree. There is no way you can say this standard is one of a kind; don't know the status of cross-checking is; but through this process we can examine some of this in the 4.1 Production Systems and in cross checking discussions, especially in all the x.x.1 sections where we refer to the PSP “Is it viable economically and otherwise for the producer? What is the underlying impact on the community? How do we reconcile the cost to consumer and the cost in the community. ; in standard setting all over, we will now have honest discussions about tradeoffs, but we will no longer have these conversations in isolation; would like to have this conversation between economic, social and environmental. And in the Roundtable for Sustainable Biofuels, we are having these holistic discussions. Even the government is talking about it. This is a sustainability standard and for us to say it’s not part of the conversation would make us look behind. She strongly object to the notion that GM effects don’t belong in a sustainability standard.
Doug repeating back: you would like all three subcommittees to evaluate their drafts on this issue and then speak about it as a group

Bryan

Going back to Tom's point that "it is impossible for GM producer to comply"; Bryan thinks it's the opposite; it is easy to comply, because it talks about minimizing impact; not minimizing drift; if you think about statistics (what is % of biotech corn? (85%), (soy 90%)- there will be no negative impact of drift if you are already growing biotech corn…they will be able to comply because there is 85% they will be surrounded by farmers growing biotech corn

Michael

Echoing Bryan, in 98% of circumstances your GM grower will be able to comply
Tom exaggerates when he says "minimize means zero"; we might consider "cooperation before we proceed with "minimization" in tiers. Suggestion from Michael to adjust language

What if we adjusted some of the required and optional in performance levels; producers could get credit for implementing levels as high as they can but they wouldn't be required on all fronts to achieve some sort of sustainability claim

Bryan

Bryan fine with what Michael suggests; fine with adding another indicator to go in steps
Ok with scaling back some requirements but if we look at what we have for Bronze and Silver now, it seems scaled right; nothing onerous (Don doesn't disagree; just a process to move forward if we find ourselves at impasse)

Standard tilts everything to end up in an "organic pile" at the end
No grower of biotech crops would sign up for this at the end point (Platinum, gold)
Stressing point that no biotech grower would want to be a part of this
"Describe in PSP policies procedures to cooperate" - then you would be close to USDA AC21

Doug

repeating: in 98% of cases, no grower in area growing identity-preserved crop that needs to be taken under consideration; but in 2% of cases, there might be a neighbor who has a contract for IP products and that is when there would be an issue [Tom doesn't agree with these made-up growers; a "minority" of growers, yes]; is this point being made correctly? Group says yes

Bryan

AC21 report is important, is a gov report; it is NOT talking about sustainability, that word never came up in Bryan's charge when he worked on this
We agreed at first meeting that sustainability has three pillars; it's part of what makes sustainability diff from organic
To have something that considers the social impacts of drift, makes this different
Speaking to example of neighbor who signs contract with Whole Foods; there is a three year transition period for organic

Repeats question, why does this have anything to do with sustainability; looks more like an anti-GMO standard, which is the lingering criticism of this

Jody

Thinks this whole conversation is fascinating; How will standards in the future consider social sustainability; in bioenergy this is being taken seriously, not just by anti-GM folks
You can't say that this shouldn't be part of the conversation; it would make us look behind or antiquated to not have this debate; would strongly object to saying that any discussion of third party effects of GM growing doesn't belong in sustainability standard

We are talking about adding the word "cooperate" at all tier levels; a word that defines everything that comes after

Bryan

Goes to Michael's suggestion to add another indicator at very beginning that includes cooperate

Grace

Sees Tom's point that "cooperation" should be premier strategy that everyone must use first; would suggest that in 4.1 the policies and procedures include cooperating with neighbors to minimize X; finding out initially what is needed and what is important in maintaining neighborly relationship
Doug has made note of this

We've covered a lot; happy to have more conversations with Bryan

Doug: if not more comments, we've heard both sides and "in-between" sides and heard suggestions; will process and share notes and reconvene committee when Doug gets back from post-semester vacation