Give people more than they expect and do it cheerfully

Myriad rules and regulations challenge emergent biofuels industry

Institute of Genomic Biology April 2009

Bryan Endres’s exploration of the legal issues surrounding biofuels and genetically modified plants is tightly integrated with the efforts of IGB scientists to unlock the key to commercial production of cellulosic ethanol.

“They are working on the science while we’re working on the law at the very same time,” says Endres, assistant professor of agricultural law and a faculty member in both the BioBEL and EBI themes. “They look at a technological breakthrough and we’re looking at what are the legal and regulatory implications of this breakthrough before they’ve even thought about commercializing.”

The legal complexities of biofuels and genetically modified crops are myriad. But Endres is excited about this field because he believes that Illinois is positioned to become a real leader in biofuel production.

“Illinois can be a hub of celullosic biofuels production for the US just like Silicon Valley is for computers and the two coasts are for medical technology,” he says. “We have the land, the infrastructure and the science.”

To promote this idea of Illinois as the Silicon Valley of cellulosic ethanol production, Endres and others within IGB organized and held a conference here in April on the legal aspects of biofuels production. Experts from around the world, including real leaders like Brazil, the United Kingdom and the European Union, shared ideas on how to create a legal and regulatory structure that makes producing biofuels an appealing and economically feasible undertaking.

The regulatory framework of biofuels “is such a large project that we’ve had to prioritize what we look at first over this large scope of issues,” says Endres. “It is also a very fast moving project in which everyone is involved: at the state level, trying to incentivize production for rural development purposes; at a national level, especially with the change in administration, where renewable energy is a cornerstone of the administration’s goals; and at an international level where the questions center on climate change and how cellulosic ethanol affects the carbon footprint.”

“It’s moving so fast that we’re always behind,” he says, smiling.

And Endres does not expect the pace of technology advancement to slow down any time soon. However, through his efforts and the efforts of others, particularly within the BioBEL and EBI themes, there is the hope that regulations and laws will follow closely behind the technological breakthroughs that are coming ever more quickly.

Endres first became interested in genetically modified crops in the late 1990s when he was in law school.

“Genetically modified plants were new and not a lot of people were growing them. There were a lot of questions and it was a great legal topic because the law was so unsettled,” says Endres.

Given the potential for environmental impact, Endres felt that it was an area that was both complex and urgently needed a functioning legal regime, not only for health and safety reasons, but to stabilize the legal environment and encourage further private-sector investment. Oftentimes a new technology moves faster than the law that can regulate it and the law has to play catch up. This is the case to some degree within genetically modified crops and biofuels: case law is still being built. Nevertheless, legal experts, Endres included, are already addressing and even anticipating legal and regulatory issues arising from new plant technologies.

And the field is ripe for legal experts and others interested in policy and regulation. For example, in the case of land property rights, an essential question is, if you grow genetically modified plants “do you have to fence them in like a dog or if you don’t want them do you have to fence them out?” says Endres.

Case law is only slowly being established on this issue, because disputes are most often settled out of court.

“The person damaged is made whole outside of the court process, so there is no judgment, which means no legal precedent is created,” says Endres. “With no precedent, the law remains unsettled.”

It takes a catastrophic, large-scale situation, like the Starlink biotech corn case, where genetically modified corn co-mingled with non-Starlink corn. A class action suit resulted and the reported damages were $110 million.

“Scientists talk about data points, this case is a data point for law,” he says.

But land use issues, including co-mingling of crops, is just one of many arenas in which legal issues arise. There are, for example, also international issues since crops are commodities that are traded around the world and regulations vary from country to country.

Yet another issue revolves around access to modified seeds. Seeds used to be given away. Farm associations would give money to land grant institutions to develop these seeds as a public service. With genetic engineering, the cost is so high and technology is so advanced that in order for private firms to earn their return on investment they have to protect their intellectual property. That means finding ways to eliminate the saving and sharing of seeds.

“Some farmers feel like they have helped develop these new varieties that are now being genetically engineered, but only the last step in technology development gets the intellectual property rights,” says Endres. “You then have farmers who are saving seed, and seed companies, like Monsanto, then litigate against farmers.” In another layer to this problem, American farmers compete in a world market and if Brazilian farmers, for example, can save seed they have lower production costs. American farmers, who are already battling higher costs like land and labor, now have higher seed costs, too.

“All this creates conflict. As a lawyer you always look for conflict to identify issues for further investigation,” Endres says.

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