The Worm Has Turned: GMO Corn, Pesticide Resistance, and the EPA

by Dr. Gerard Emershaw

The corn rootworm is a voracious monster. Corn rootworm larvae can be devastating to corn crops, causing billions of dollars of damage before the development of genetically modified Bt corn by Monsanto, Bayer, and others. Bt corn is a genetically modified organism (GMO) which contains the pesticidal toxin-producing Bacillus thuringiensis gene. Bt corn currently accounts for three-quarters of the United States corn crop. Praised as a godsend when it was introduced in 1996, Bt corn quickly led to larger yields for farmers and allowed them to use less conventional pesticides, which are typically more ecologically damaging. Unfortunately, rootworms have been developing a natural resistance to the toxins in the Bt corn. This will lead to the increased use of conventional pesticides by farmers, reducing much of the economic and ecological benefits that Bt produces.

Scientists who foresaw this turn of events as early as 2002 suggested that the EPA mandate a 50% refuge—a 50% area of non-Bt corn. Rootworms that feed on the non-Bt corn do not develop a resistance to it, and then breed with the surviving rootworms that fed on the Bt corn and developed immunity. The resulting offspring will not have resistance to the Bt corn toxins. The Environmental Protection Agency (EPA) set the requirement at a 20% refuge area for single gene Bt corn in corn growing areas, and reduced it to only 5% with Bt seeds with multiple genes. These refuge requirements were voluntary, and many farmers did not follow them. Should the EPA have been more forceful? Should it have mandated larger refuge areas and enforced it? Did GMO seed companies oppose larger refuge areas in the name of maximizing short-term profits?

The first issue involves the EPA. Should it set enforceable requirements for farmers who are using Bt corn? Should it continue to simply publish voluntary levels of refuge area? Or is something even more extreme required? Article I of the Constitution gives only the Congress the power to legislate: “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” However, the Supreme Court ruled in J.W. Hampton, Jr. and Co. v. United States (1928) that Congress may delegate is legislative power to the executive branch of the federal government provided that Congress gives an “intelligible principle” to guide the executive branch. While this holding has been followed for nearly a century and has given rise to the leviathan executive branch regulatory state, it is clearly mistaken. The Constitution clearly states that all legislative powers in the federal government belong to Congress. It is a long standing principle that legislative powers are not delegatable, stretching all the way back to the philosophy of John Locke, who contended famously in 1689: “The legislative neither must nor can transfer the power of making laws to any body else, or place it any where, but where the people have.”

Even if Congress were not delegating power to the EPA but were instead legislating enforceable requirements for mandatory refuge areas in fields planted with Bt corn, this would still be unconstitutional. Article I, Section 8 of the Constitution does not give Congress the enumerated power to regulate what farmers plant in their fields. An apologist for federal power will doubtless point to the Commerce Clause (Article I, Section 8, Clause 3) to justify such regulation. The Commerce Clause gives Congress the power “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” However, despite the broad and draconian powers that the Supreme Court has allowed Congress to grab by appealing to the Commerce Clause, the truth is that it does not give the legislative branch the power to dictate what farmers plant. It is ridiculous to claim that regulating commerce includes regulating production. Congress cannot regulate the production of food or any other goods in foreign nations and could not do so in Indian territories when the Constitution was penned. Therefore, claiming that the Commerce Clause has anything to do with production is wrongheaded. Commerce is simply the activity of buying and selling. Growing corn is not part of that.

It appears that American corn growers have the right to plant as much or as little refuge as they desire. It is no job of the federal government to protect individuals from themselves. However, objections must be considered. First, one may argue that GMO-producing corporations such as Monsanto and Bayer may be committing fraud by not telling the farmers who buy their Bt corn seeds that larger refuge areas would be prudent because it would help prevent widespread toxin resistance in rootworms. In a way, the existence of the EPA exacerbates this possibility. When government agencies such as the EPA or FDA provide guidelines, many people view these as definitive. Therefore, under the current corporatist system, powerful private entities such as Monsanto and Bayer can lobby the government for relaxed recommendations. When the government states that a 5–20% refuge area is adequate, many farmers are likely to ignore claims of scientists that 50% refuge areas are necessary. The existence of the EPA in cases like this only endangers farmers and consumers.

Assume there the EPA did not exist. What then? The farmers would be responsible for researching the matter on their own and determining for themselves how much of a refuge area to grow. This is where it becomes a bit tricky. Corporations which sell Bt corn seeds and other GMOs will no doubt produce and provide research of their own. Can they be trusted or are they likely to release bogus studies as the tobacco companies often did years ago? The federal government may have some role here in protecting the public from potential fraud. But perhaps it is preferable that the government wait until a civil court determines the matter. One can imagine farmers or other litigants suing GMO corporations that they believe have defrauded them by using misleading or blatantly false research. Perhaps it would be better for federal prosecutors to wait until the science is more settled instead of allowing the federal government to have an expensive and unconstitutional agency involved with researching agricultural science. Or perhaps it would be better to leave these matters to the states, which have far more power in this realm under the Tenth Amendment.

A second objection is that the government must regulate GMO refuge area because such a matter does not simply affect the farmers in question but affects others. John Stuart Mill’s utilitarian libertarian Harm Principle states: “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” Government simply has no right to interfere with people who are exercising their natural rights to life, liberty, and property unless others are being harmed and, thus, are having their natural rights to life, liberty, and property violated. Assume that farmers X and Y decide not to plant any refuge area, and that this eventually leads to rootworms which are very resistant to Bt corn’s toxins. Farmer Z’s Bt corn may be endangered by this through no action on Z’s part. This may be parallel to the case of antibiotics and antivirals. Under John Stuart Mill’s Harm Principle, the government has no right to regulate the use of most drugs. If the use of alcohol, marijuana, cocaine, heroin, LSD, etc. will only affect the user directly, then the government may not ban such drug use among autonomous adults. If X and Y shoot up heroin, this does not affect Z. Perhaps X or Y may get behind the wheel and run Z down, but this involves reckless driving and not drug use. It is the reckless driving that the government may prohibit, regardless of the cause. However, if X and Y misuse antibiotics and antivirals enough—taking them when they do not have bacterial or viral infections—then this promotes the evolution of bacteria and viruses that are resistant to the drugs. Therefore, it is not a violation of the natural rights of the people for the government to regulate these drugs anymore than it would not be a violation of X and Y’s natural rights for the government to prevent X and Y from placing in their bodies large doses of plutonium that may make bystanders sick. The existence of external pesticides which can still kill rootworms further complicates the matter. Are the conventional pesticides here more analogous to the antibiotics and antivirals? Is Bt corn more akin to a transhuman who has been genetically engineered to produce his or her own natural antibiotics or antivirals?

What is clear is that the EPA has no right to deal with this in any way, shape, or form regardless of what the Court erroneously held in J.W. Hampton. Does Congress have the power to regulate the Bt corn under the premise that not planting a refuge area can harm other farmers? Even if one employs the Necessary and Proper Clause, the only possible power involved would be the Congressional power to declare war. But does a war against rootworms make sense? What about the President? Does the President have the power to regulate Bt corn in such a case? As Commander-in-Chief the President has the power to act to repel an attack against the United States. However, while this rationale may give the President the authority to quarantine individuals who are infected with a deadly and infectious disease, corn that is more susceptible to pests hardly seems comparable.

In the end, the federal government has no authority to regulate Bt corn or any other GMOs. If GMO corporations lie about their seeds, then this may constitute fraud, and civil and perhaps criminal courts should be invoked. States may also have greater authority to regulate in this area under the police powers that they are granted by way of the Tenth Amendment.