lems arising from the environmental release of GMOs as essentially disputes

Lems arising from the environmental release of gmos

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lems arising from the environmental release of GMOs as essentially disputes between property-owners and market actors, tort rules out a wider consideration of the ethics, ecological risks or socio-economic impacts involved. The effectiveness of tort as a means of restraining the uncontrolled environmental release of GM crops is very limited. For example, proof of causation is extremely difficult in genetic drift cases. The doctrine of strict liability may help to address this problem, but it will apply only if the courts judge cultivation of GMOs to be an inherently hazard- ous activity. In addition, it may prove to be relatively easy to mount a legal defence against a genetic drift claim. For example, the farmer may escape liability if he can show that he followed all the relevant agronomic guidelines and took the recommended precautions, such as notifying his neighbours and planting a buffer zone of conventional crops between his GM plants and his neighbours’ fields. 15 Similarly, if statutory regulations stipulated what precautions were legally required, a defendant GM farmer would be able to avoid liability if he had followed them, even if the mandated precautions were not actually sufficient to prevent the harm (Wilde, 1998). These examples illustrate the reliance that courts or legislators must place on scientific expertise to help determine the probability and mag- nitude of risks and what precautions are reasonable (Repp, 2000). The premises and evidence on which this scientific advice is based must
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219 | nine therefore be regarded as critically important. Equally, however, it is questionable whether lawyers and judges are well equipped to evaluate scientific evidence about risks, or whether a court is the most desirable forum for determining what level of risk society should be willing to accept. The judicial system is insulated from democratic accountability and there is no scope for public consultation regarding the wider im- plications of a judgment in a specific tort suit. The decision by some plaintiffs to target the biotech firms instead of farmers or regulators needs to be understood in the context of their broader strategy and goals. If improved enforcement were the main priority, a legal challenge against government regulatory authorities, as in the Terra Prima case, makes better sense. If it were a question of targeting the party with the best ability to pay, then the corporations might be a good bet, except that torts such as nuisance and trespass are likely to be easier to bring against neighbouring farmers than the companies which sold them the seed they planted on their land. The decision to go after the biotech corporations makes sense as part of a wider strategy for delaying GM commercialization, by adding costs, creating uncertainty and generating adverse publicity that frustrates the plans of the biotech firms. Seen in this light, even failed cases matter to the anti-GM campaigners, provided they succeed in causing delay and drawing attention to inadequacies in the current system of
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