Biotechnology in agriculture is upending traditional notions of justice and liability; public policy is failing to keep up with the problem. Both chemical and organic farmers are venting frustration over harm.

Lawsuit over Viptera GMO corn

American farmers suffered billions of dollars in losses when Syngenta’s Viptera GMO corn was rejected by China in 2013. Two Peoria law firms are charging Syngenta knew of the risk and failed to warn farmers. Their lawsuit charges the agrichemical giant with “greedy and irresponsible actions” over marketing and sales of a genetically modified corn seed.

“We’re not anti-GMO . . . though there are a lot of questions about GMO. This is about Syngenta’s lack of stewardship,” said Mark Wertz, with Vonachen, Lawless, Trager & Slevin.

Syngenta advised farmers to plant Viptera next to their other corn, and it cross-pollinated, Wertz said.

Attorney Doug Stephens, with Stephens, Fiddes and McGill, is working with Wertz and said there are currently about 100 plaintiffs on the suit filed in late November in U.S. District Court in Peoria but more are expected to join. There is no cost to joint the lawsuit. Attorney fees will be collected on a contingency fee basis if the suit is successful, Stephens said.

“We now have more than 100 farmers across central Illinois, Western Illinois and LaSalle, but this litigation spills across the United States,” Stephens said. “You don’t have to plant Syngenta’s GMO to be damaged. Syngenta did not manage well and released (the new GMO) too quickly.”

All farmers who planted corn, whether it was Viptera GMO or not, were hurt by the sharp drop in corn prices when the Chinese order was cancelled and billions of bushels were unexpectedly dumped on the market.

Wertz said Syngenta has $14 billion in annual revenues and the loss the corporation inflicted on farmers was “not small or miniscule.”

“Our firm started working on this a year ago. We recognized the importance of it, and no one locally was taking it on,” Wertz said.

Currently, there are lawsuits in a number of states against Syngenta over Viptura GMO.

When China cancelled the order and billions of bushels of corn flooded the market, prices dropped about 11 cents per bushel, according to estimates from the National Grain Farmer’s Association.

The losses sustained by American producers in 2013 and 2014 are estimated at more than $3 billion.

Organic farmers suffer from chemical and GMO trespass

Organic farmers sustain significant financial losses each year from both pesticide drift and contamination from GMO pollen.

Sometimes the financial loss comes when drift means a farmer’s organic status is jeopardized, but more frequently it comes from docked market value. Organic corn sold in central Illinois for $10.90 a bushel in 2014, but GM contamination bumped that down to $3.79 a bushel. Organic soybeans were $26.61 in 2014; the price was bumped to $9.94 a bushel when GM contamination was detected.

It’s a problem that currently lacks a solution.

“When I was growing up in North Dakota, it was understood if a farmer added an activity to his farm like livestock that was dangerous to his neighbors, it was his responsibility to fence. It was not his neighbor’s responsibility,” said Frederick Kirschenmann, a fellow at the Leopold Center for Sustainable Agriculture at Iowa State University.

Because there are no guarantees even with fencing that an animal won’t get through and cause damage to a neighbor’s crops, farmers with livestock carry liability insurance.

“With biotech, it’s the opposite. Organic farmers have to fence out, not the GMO farmer fencing in. But with bioengineering, you can’t fence off a piece of nature. It’s all connected,” he said.

In 1976, Kirschenmann began transforming his North Dakota farm to organic and his neighbors all took great pains to insure against chemical drift. They did not use crop dusters and all sprayers were hooded to minimize drift.

But even with those precautions, Kirschenmann sustained contamination from drift. He was selling his golden organic flax to a buyer in Europe. The tolerance for glyphosate in European organic is zero. In the United States, organic can have up to 2 percent glyphosate residue. In 2014, his flax was tested and had .075 percent glyphosate. The European buyer cancelled the order.

Kirschenmann lost his contract for $36.50 a bushel.

Investigating how this happened despite his buffer areas and the care exercised by his neighbors, Kirschenmann found a study in Iowa in which every sample of air and water had glyphosate.

“It rains. We can’t fence off the rain,” he said. “I have great reservations about the concept of coexistence. Nature is a complex integrated system.”

The only long-term solution, he said, is to mandate that the company that patents the technology must assume responsibility for harm.

Biotechnology and GMOs can only be evaluated for known harm, but evidence is mounting that the microbiome of the soil, a critical component of human health, is being harmed by chemical, GMO farming. Glyphosate, the active ingredient in Roundup, damages soil health.

“We need a cultural shift to take place at a grassroots level. Customers need to demand changes,” Kirschenmann said.

Rosemarie Fiorillo, an attorney with Korein Tillery in St. Louis and Chicago, said, “This is an area where the law needs to catch up.”

Organic farmers don’t want the definition of organic adulterated to allow more chemical contamination, she said.

One reason why the European Union has stricter regulations of farm chemicals and GMOs, Fiorillo said, is because the EU follows the “precautionary principle” to evaluate risk while the United States uses cost-risk analysis, a more capitalistic, monetary evaluation.