A wild bird chase / GMOs and Environmental Liability (12/2/2007)

1.A wild bird chase
2.Environmental Liability
Make GMOs a Special Case
3.SPECIAL BRIEFING: GMOs and Environmental Liability

1.A wild bird chase
The government's chief scientist has focused on wildlife as the cause of last week's bird-flu outbreak - but it looks like he's wrong.
Peter Melchett
The Guardian, February 12 2007

All through the main bird migratory season last autumn, and during this winter, the government has been testing wild birds for avian flu. They found evidence of the low pathogenic variety of bird flu, which seems to have been present in wild bird populations for a long time, without causing any serious problems. But they didn't find a single case of the high pathogenic variety, H5N1, the type that turned up on Bernard Matthews' turkey farm just over a week ago. As someone else said, it always seemed a bit unlikely that the first wild bird for nearly a year to carry the deadly version of the virus should just happen to drop dead over Suffolk and fall into a ventilation shaft on one of Bernard's turkey factories.

Despite this, for most of last week the government's chief scientist, Sir David King, led the charge to blame wild birds. At least he was being consistent. From the start of the bird flu scare, he has seized on wild birds as the source of the infection. Last year he was also alone in the government in declaring that this could mean the end of free-range and organic chicken and turkey farming. To her credit, the chief vet at the Department for Environment, Food and Rural Affairs (Defra), Debbie Reynolds, has adopted a more open-minded approach. Defra has worked well with representatives of free-range and organic poultry producers, agreeing protocols that would allow this type of farming to continue.

Sir David is admired by many environmentalists, me included, for his forthright leadership on climate change. It was him who, rightly, reminded Tony Blair that climate change is a greater threat than terrorism. But like his predecessor as chief scientist, Sir Bob May, he is a huge fan of genetic engineering. Maybe this is part of the job description for chief scientist in Tony Blair's government.

For over a year, there have been persistent suggestions that the bird flu epidemic was connected to the spread of industrial poultry production, particularly in south-east Asia. This is in contrast to the media's focus on migrating birds and small-scale, peasant farming, with small flocks of chickens kept in traditional ways. A report by Grain, Fowl Play, published early last year, set out the case in detail, but has been largely ignored. The outbreak at Bernard Matthews' factory, and the apparent link to Hungary, precisely fits the thesis put forward by Grain.

Up to the middle of last week, Sir David King was still blaming wild birds. Even when evidence for the Hungarian connection emerged, he barely blinked before announcing that even so, the virus could now have got into the UK's wild bird population, which therefore still posed a terrible threat.

Of course wild birds can spread the disease, but why this exclusive focus on wildlife? And why the rush to suggest that outdoor and organic production might have to end? I think the answer lies in the two very different and contradictory visions of the future of farming and food that are currently battling for supremacy. One view is held by Sir David, most of those running the UK's National Farmers' Union, in parts of Defra and in the Department for Overseas Development, and by Tony Blair himself. They see a hi-tech farming future, continuing the trend of the last 60 years, overwhelming natural processes with chemicals and new technology. For crops, this means genetically engineered seeds which produce crops that kill insects, are resistant to weed-killers, and deliver new benefits through higher yields or other enhanced characteristics. For animals, cloning and other advanced breeding techniques will produce creatures that produce ever more milk or meat, ever more quickly, and cheaply. "Bio-security" around these caged and weakened animals will prevent them succumbing to diseases and infections.

The alternative, organic vision sees us working with more natural processes, providing nutrients from crops by fixing nitrogen using the sun's energy and plants like clover. Growing a wide variety of crops, on mixed crop and livestock farms, provides fertility, weed control and natural resistance to disease. Farm animals mature more slowly and produce less milk. They live as natural a life as possible, eating natural diets, living outside or having access to fresh air and grass for most of their lives. This gives them positive health, allowing them to resist most disease threats. Needless to say, the advocates of this system, like myself, also think it provides tastier and healthier food, on top of the accepted, very significant environmental benefits.

While many say there must be room for both systems, the reality is that they take both farming and food in totally different directions. The hi-tech brigade assume world-wide trade in farm products and food is the norm. Organic farmers want as closed a system as possible, with most food produced locally. Hi-tech assumes we have the right to all-year-round availability of any food we want, usually processed. Organic assumes a move to a much more seasonal diet, generally fresh and unprocessed. Hi-tech assumes continued growth in cheap meat consumption, organic assumes we eat less, more expensive but higher quality meat.

Unfortunately, for the hi-tech brigade, things don't seem to be working out as they should. Genetically-engineered crops have yet to deliver any increase in yield. GM crops that are engineered to kill insects, like GM cotton, seem to suffer from unexpected side-effects - the cotton buds fall off the plant when they get too hot. GM plants resistant to weed-killers, and sprayed with chemicals that kill all other plants, have led to the rapid spread of resistant weeds. Overall, the use of weed-killers then increases, following an initial drop. The plants that kill insects have spawned resistant pests far faster than anyone predicted. And in India, sheep and goats died after eating GM crops.

For animals, the huge increase in output, for example in dairy cows, is leaving more and more of them incapable of managing more than one lactation. One-third of Britain's dairy cows are now killed after one period of milking, their bodies wrecked by the thousands of litres of milk that pour through them. With mad cow disease, foot-and-mouth and now bird flu, it is pretty clear that disease is a growing problem for industrial livestock farming, despite the claims that "bio-security" will lock nature and disease out. The rise in TB in cattle, widely blamed on badgers, seems better correlated with another aspect of industrial farming, namely the widespread movement of animals and their products around the country, and indeed around the world. This was revealed by the rapid spread of foot-and-mouth, and may now be responsible for the bird flu outbreak in Suffolk.

In this crisis, Defra ministers David Miliband and Ben Bradshaw seem more determined to keep open movement of meat than to protect us from imported diseases. Exactly the same political priority - keeping open the global meat trade - led Tony Blair (with the backing of big food businesses and the National Farmers' Union) to refuse to vaccinate during the foot and mouth epidemic - condemning tens of thousands of healthy animals to unnecessary deaths.

It must be hard for Sir David, as an advocate for "modern" hi-tech farming, based on global movement of meat and other food, driven forward by the miracles of genetic engineering and safeguarded by hi-tech bio-security, to have to admit that the very characteristics that define the system he admires are causing such terrible problems. Far easier to blame it on the (wild) birds.

Maybe one positive thing to come from this mess is that it has once again reminded people that they are being conned about where their food really comes from. Turkeys, or any other meat, from anywhere in the world, can be imported into the UK, tinkered around with a bit, and packed and labelled as "British". Agri-business knows that if they told the truth about the food they flog us, still less let us see the inside of one of those turkey factories, the chances are no one would ever buy the stuff again. Demand for organic food looks like receiving yet another boost.

2.Environmental Liability Make GMOs a Special Case
Press Release

Genetically Modified Organisms should be made a special case when new rules on liability for environmental damage are put in place in the UK say a group of environmental organisations [1].

The UK is due to implement the European Environmental Liability Directive in the UK this year and public consultations are currently underway. The group are calling upon UK politicians to support their proposals to strengthen the UK's environmental liability laws for GMOs to go well beyond the baseline laid down in the Directive. If the Government's current proposals are implemented, biotech companies are unlikely to be held responsible for any damage to wildlife caused by their GM crops.

Under the EU Directive any company or organisation responsible for causing harm can be held liable for cleaning up the environment or taking compensatory action if the damage cannot easily be reversed. The release of GMOs into the environment is one of many activities covered by the Directive. The four nations of the UK will each introduce their own regulations.

In a briefing [2] sent to Members of Parliament this week, the organisations set out their case for making GMOs a special case compared with other activities covered by the Directive because:

· The nature of the risks from GMOs is very different from other activities: GMOs are living and able to multiply in the environment.

· The range of species and habitats covered excludes most areas where GMOs are likely to be grown such as farmland.

· Scientific knowledge about GMOs and their impacts is limited and unexpected results have occurred already.

· The permit system for GMOs is not location specific and they could be released anywhere across the countryside.

· The impact of GMOs may take longer than the 30 year liability time limit specified in the Directive.

· Liability does not extend to laboratory GM animals, plants and microbes which could escape and cause harm to the environment.

The organisations are calling for the Regulations in England to:

· drop the defence that allows exemption from liability if a company hold a consent to release a GMO (the "permit defence").[3]

· drop the defence that allows exemption from liability if the scientific opinion at the time of the release of the GMO was that it was safe for the environment (the "state of knowledge defence").

· make GMO consent holders not farmers strictly liable.

· extend the liability time limit for GMOs to 75 years.

· extend the scope of the areas covered by the Regulations to cover all countryside and all water bodies

· make environmental liability insurance compulsory.

Commenting, Pete Riley from GM Freeze said:

"As things stand Defra has indicated that they intend to only implement the Directive to the lowest possible standards. This would mean millions of acres of countryside and hundreds of species would not be covered for harm caused by GMOs and other environmental damage. GMOs have to be made a special case because they can reproduce themselves and damage may take years to become apparent. We believe that Parliament would be widely applauded if they extended the scope of GMO liability as we have proposed as this would ensure that biotech companies would bear the full cost if their GMOs went wrong once released".

Becky Price (GeneWatch UK) said "we are very concerned that neither the Government nor the biotech industry has convinced the public that GM crops are desirable and yet tax payers will have to foot the bill if damage is caused to 'protected' species such as the brown hare or the red squirrel".


Calls to Pete Riley GM Freeze 07903 341065 Clare Oxborrow Friends of the Earth 07712 843211.

Becky Price GeneWatch UK 07949 396328


1.Genewatch UK, GM Freeze and Friends of the Earth.


3.The EU Liability Directive allows exemption from liability if the activity causing their environmental harm has been authorized by the authorities. Thus a GMO Experimental or Commercial Release Consent for a particular GMO would mean that harm caused would not caught by the Directive. This is known as the "permit" defence. In the consultation for England Wales and Northern Ireland, The Welsh Assembly Government has indicated that they wish to drop the permit defence for GMOs.


from GM Freeze, GeneWatch UK and Friends of the Earth GMOs and the Environmental Liability Directive: the case for special treatment

February 2007

The Environmental Liability Directive (ELD - 2004/35) provides the liability regime for environmental harm arising from the use of genetically modified organisms (GMOs). This is the regime that was promised during the negotiation of the Deliberate Release Directive (2001/18 - Recital 16), but it also includes environmental damage caused by other activities.

The ELD has to be implemented in national law by April 2007. DEFRA, the Welsh Assembly Government and the Scottish Executive are conducting consultations about their planned approaches. There are shortcomings in the Government’s proposals for implementing the ELD for all the activities it covers. The inclusion of GMOs, among a whole range of potentially hazardous activities (listed in Annex III of the ELD) that are very different in nature from each other, has led to proposals which leave it very unlikely that any company or person using GMOs will be financially liable for harm that may arise.

This briefing outlines some of the important reasons why GMOs should have a more robust and tailored regime.

1. The nature of the risks from GMOs is very different from other Annex III activities: GMOs are living and able to multiply in the environment. Any adverse effects could be more far-reaching and more expensive to mitigate than for the other potentially hazardous activities covered by the Directive, such as chemical discharges to water. Furthermore, there is little experience to draw upon in long-term assessment of the potential effects the first GM crops have only been grown commercially for a decade, with no systematic monitoring of their impacts. Only minimal cultivation has taken place in the UK during the Farm Scale Evaluations.

2. The permit system for GMOs is not location specific. Permits for the discharge of pollutants to rivers and air, waste disposal and water abstraction are based on assessments of the local environment where they will occur. In contrast, the system of GMO approvals is Europe-wide, with a very generalised approach to the receiving environment. This is a very permissive approach to pollution and could result in a higher risk of damage to sensitive sites and species over a wide area. This should be balanced by appropriate financial and legal accountability.

It is also possible that European approval for a GMO could be given despite concerns in the UK. This is because the system operates on the basis of a qualified majority. The UK could oppose a permit because adverse environmental impacts are possible but this could be awarded either because a qualified majority of other member states is achieved, or because the European Commission makes the decision when agreement is not reached by the regulatory committee or council of ministers. (This situation arose in relation to the approval of Syngenta’s insect resistant maize, Bt176). If, subsequently, environmental harm arose, the treasury could be forced to pay for remediation, not the company involved, if the permit defence was allowed.

The state of knowledge of GMOs in the environment is limited and unexpected events have been recorded as a result of field trials. For instance, pollen transfer over 26 km was recorded in Scotland for oilseed rape when previous such events had been limited to below 5km . During the Farm Scale Evaluations, a cross pollination between oilseed rape and the arable weed charlock was recorded which had previously been thought to be impossible in the wild because the two species were considered to be too distantly related .

3. The scope of environmental harm covered under the ELD does not match that under GMO permitting rules. The environmental risk assessment that is conducted for the use of GMOs under the Deliberate Release Directive(2100/18) and Food and Feed Regulations (1829/2003), considers the whole environment including the soil, not just protected species and habitats. GMOs could damage farmland biodiversity or habitats that are not protected a currently common species could be pushed to threatened status or GMOs could spread over marginal land (requiring large investments to control them) and no financial liability for damage will be held by the company producing or using the GMOs. If such environmental harm had been predicted, the release of the GMO would not have been allowed.

Therefore, the scope of the protection of biodiversity must be made consistent with existing national and European GMO laws and be extended to cover a wider definition of biodiversity. Many species, such as the skylark, linnet and brown hare, only became protected once degradation of the agricultural environment had become so severe that this status was required to prevent further decline. Maintaining and improving the agricultural environment as well as the natural environment is important in biodiversity protection as a whole. The ELD must be consistent with national approaches to protecting biodiversity.

4. Any harmful effects may take many years to arise or be detected. Different GMOs also have the capacity to combine through cross pollination so new traits may be gene ‘stacked’ in feral plants or in wild. Over time (if the traits provide plants with a competitive advantage over natural plants) these plants could become invasive of certain habitats. The processes involved in such plants becoming fitter are not well understood. Experience of exotic plant introductions suggests that the 30 year time limit on liability in the ELD may not be sufficient to eliminate the possibility of unforeseen harm from the release of GMOs. For example, ACRE report that Japanese Knotweed was not recorded in the wild until 61 years after it was first cultivated in gardens in 1820 .

5. UK laws cover the use of GM plants and animals in laboratories, but these fall outside the strict liability regime of the ELD. GMOs covered by the Deliberate Release Directive and the Contained Use Directive are Annex II activities under the ELD. However, the Contained Use Directive only applies to genetically modified micro-organisms. UK laws implementing the Contained Use Directive were extended to include the production and use of GM animals and plants in laboratories. Therefore, consistency is needed or, for example, a genetically modified insect or fish could escape from a laboratory and cause environmental harm, but no legal or financial liability would apply.

6. The public have concerns about environmental risks of GMOs and want to see firm regulation. The Government’s own public debate on GM, ‘GM Nation?’ highlighted people’s concerns about the environmental impact of GMOs and their preference for firm regulation. This clear policy steer has to be recognised in the environmental liability rules that are applied to GMOs in the UK.

7. Financial security. The Directive requires that "Member states shall take measures to encourage the development of financial security

instruments and markets by the appropriate economic and financial operators" (Article 14.1). In the case of GMOs the provision of financial security is in doubt because to date no insurance company has been prepared to quote premiums to cover GMO cultivation because of the lack of experience and scientific data. Difficulties in obtaining data on the long term environmental impacts of GMOs may mean insurers may be reluctant to provide long term cover. Companies releasing GMOs into the environment should be required to have compulsory insurance in place prior to the release.

Conclusion and Recommendations

The release of GMOs into the environment poses substantially different risks to the environment from other activities covered by the Environmental Liability Directive.

The extent of these differences means that the Welsh Assembly/Scottish Parliament/ House of Parliament would be justified in make GMOs a special case within the domestic legislation.

This would entail:
· dropping the state of knowledge and permit defences
· making the GMO consent holders not farmers (operators) strictly liable
· extending the time limit on liability to 75 years.
· expanding protection to cover the widest possible area of land and water
· requiring companies releasing GMOs to have compulsory insurance.

Without such measures it would appear that no-one will be liable for the harm GMOs cause and the public purse will pay for any remedial or compensatory measures required. Under the current proposals the taxpayer is effectively subsidising the biotechnology industry by underwriting the risks of their activities. We consider that the public would not accept such a position. We believe the recommendations outlined above would result in a policy that reflects the scientific uncertainty about the long term impacts of GMOs, is in line with current GMO legislation, and is fair to both the environment and the public.

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