Is the EPA a Reliable Guardian of the Environment?

A spectacular fail by the Environmental Protection Authority (EPA) raises serious questions about its reliability as a guardian of the environment.

At issue was the EPA’s decision to allow GMOs from two new breeding techniques to go into New Zealand fields without any formal consultation or assessment of the impacts.

The High Court quashed that decision a fortnight ago, saying the EPA had misinterpreted the law.

The judgment also found that the EPA’s interpretation “did not sit well” with its legal duty “to protect the environment, and the health and safety of people and communities”.

It further criticised the Authority for failing to act cautiously when faced with uncertainty about what the law covers.

In other words, the government agency responsible for protecting people and the environment did not properly understand its own law and rather than erring on the safe side, took an interpretation that exposed to risk the very things it is meant to protect.

And this decision was not an approval for a minor field trial.  It was the EPA saying two new ways of making GMOs would not be regulated at all.  It meant GM plants, GM animals and GM trees could be freely grown with no oversight if they were made with these new techniques.

Further, the three-person committee that made the decision went against two rounds of EPA staff advice that concluded the new techniques were GM.  Yet the EPA decision devoted just one sentence to the reason for its rejection of that staff recommendation.

Perhaps most concerning of all is that the EPA made no real assessment of what consequences would flow from its decision.  It put New Zealand at risk of losing its status as a GM free food producer without any formal consultation or consideration of the impact.

The detail of the case revolved around a regulation that excludes certain traditional plant breeding techniques from the GM laws.  The EPA decision effectively added two new techniques – Zinc Finger Nuclease (ZFN-1) and Transcription Activator-Like Effectors (TALEs) – to that exemption list.

The Sustainability Council appealed the decision, arguing that only the Cabinet or Parliament can exclude new techniques from coverage and that it was unlawful for the EPA to do so.

Those first at risk from the EPA’s sudden deregulation of the new breeding techniques were New Zealand’s food exporters.

High value markets such as Europe generally do not tolerate any detectable level of GM content in food.

The EU has yet to set regulations specifically for these new GM techniques.  But if they were used to grow crops in New Zealand and those crops contaminated export production, the shipments could easily wind up being rejected.

All it takes is for Europe to decide these new techniques are GM and the losses could be very significant.

There are a number of cases involving unapproved GMOs that have cost hundreds of millions of dollars – yet the records of the EPA’s decision-making do not mention this type of risk.

New Zealand’s GM laws were put in place to allow the risks of GMOs to be assessed in advance and to provide a process for stakeholders, such as food producers, to be consulted on any important decisions.

A key motivation for developing the new GM techniques has been to “invent around” the law, according to a leading biotechnology journal.

The EPA should have been very cautious when considering whether to allow such techniques to effectively bypass New Zealand’s GM laws.

Not only did the EPA misread the law it administers, there is no evidence in documents obtained under the Official Information Act that it thought about the impact on food exporters or that it at any point stopped to ask the simple question: “Is this something we should be doing without consulting those that would be affected”?

All up, the EPA failed on not just one, but a series of things that are fundamental to what it does.

Those multiple failures tell you something bigger is wrong and a formal review of the EPA that kicks off next month comes not a moment too soon.

This opinion piece by Simon Terry was first published in the New Zealand Herald.