Pitched on its environmental merits, the class-action lawsuit filed last week again Monsanto would be thrown out in short order. So the lawyers dressed it up as an antitrust case instead. Now it's the Microsoft case, redirected against genes.
The suit concerns two genes that Monsanto engineered, patented and now markets. Yieldgard causes corn to produce its own internal pesticide that wards off pests. Roundup Ready makes seeds resistant to Roundup, a Monsanto herbicide. Monsanto, the plaintiffs charge, has licensed its patents to various co-conspirators, including DuPont, Dow Chemical, Novartis and AstraZeneca, who in turn license genetically modified seeds to farmers. License--not sell--because copying genes is even easier than copying software, and Monsanto doesn't want to turn every customer into a competitor one harvest hence. Indeed, Monsanto already has to snoop, sue and intimidate (say the plaintiffs) to stop farmers from cutting it out of the action.
The intimidation is working, we're told. Through Monsanto's patents and licenses, six companies have gained control of half to three-quarters of U.S. corn and soybean seed distribution, and they're now poised to monopolize food production worldwide. An extra bonus for Monsanto: Its lucrative patent on the Roundup herbicide will soon expire, but farmers may be required (the plaintiffs anticipate) to use only the original Roundup herbicide with Roundup Ready seeds. Legitimate power in one market will surely be exploited to extend power illegitimately in another.
It's neatly argued--neatly enough to cause much legal mischief for years to come. But it won't ultimately prevail in court, and the plaintiffs can't really believe it will. Like so many other crusading activists, they are using the courtroom as bully pulpit, because they can't get the traction they want in legislative or regulatory forums. They're led by Jeremy Rifkin, tireless gadfly and America's foremost proponent of ecological eugenics. The new eugenics embraces passivity in the pursuit of supposedly superior genes as fervently as the old embraced intervention.
The antitrust case will founder on a clear legal principle: Patents, while they last, are supposed to create monopolies. There's no indication that Monsanto has gained more market power than its patents warrant. Quite the contrary, it has licensed its patents widely. The plaintiffs discern here further evidence of competition-suppressing conspiracy, but in antitrust law ready licensing establishes just the opposite. As for taking over the world, really useful advances are supposed to do that too, especially when they cost almost nothing to replicate. Any really major improvement in crop genes is likely to ascend fast and then stay on top until a better one comes along.
That was true long before anyone began patenting genes. Indeed, greens have long denounced the perils of "monoculture," the inexorable tendency of a single superior strain of wheat or rice to spread across farmland from Boise to Bangladesh. The phrase survival of the fittest was used to describe economic imperatives long before Darwin applied the term to the rest of nature. What's new today isn't that superior crops spread far and wide; it's that that genetic technology lets Monsanto improve genes quickly and deliberately, rather than leaving it to nature or farmers to improve them slowly, by much chancier means.
Equally clear is that gene monopolies are likely to prove vulnerable and short-lived. Patents expire, and in a field as young as biotechnology, they are likely to expire long after noninfringing improvements have overtaken them. Other big companies can harvest and re-engineer DNA from the vast reservoir of free-for-all genes that nature has already filled, and millions of farmers will continue to select and cross breed too, as they have since time immemorial. No single patent or company is going to "control the basic means of production of the global food supply," which is what the plaintiffs say Monsanto aspires to do. There simply are too many genes, too many crops, too many ways to breed them and too many people planting them. Monsanto is no Microsoft, and there isn't going to be one, not in the global food industry. The proposition that such a thing is possible is absurd. In due course, a trial judge or appellate court is going to say so.
By the time that happens, however, the plaintiffs may no longer care. Their real objective is to create friction and hostile publicity. They aren't trying to save free markets from a monopoly, and the last thing they want is more competition in this field. What Mr. Rifkin is after is something even less competitive than a monopoly. He wants nobody in the genetic technology business at all.
The second half of the lawsuit makes that quite plain. Large swaths of it address the environmental and safety objections to genetically modified crops. Monsanto, say the plaintiffs, rushed its seeds to market without adequate testing. Nobody really knows if they're safe. The crops may cause allergic reactions; they may be toxic; they may kill monarch butterflies; they contain "markers" that may reduce the effectiveness of antibiotics. Regulators in the U.S. and abroad don't trust them. Farmers who bought them were duped. Consumers hate them.
This half of the complaint is largely premised on the claim that Monsanto's bad genes won't stay bottled up at all. Bad crops, say the plaintiffs, will get mixed up with good. Bad strains will spread from the farmer's field into other habitats, and bad genes will hop from Monsanto's seeds into other organisms. Almost every creature in nature, it seems, will misappropriate Monsanto's bad genes. Except the human farmer. The farmer, recall--every farmer from Boise to Bangladesh--will end up with no place to buy seeds at all, other than from Monsanto.
Meanwhile, on yet another front in the same battle, Monsanto finds itself excoriated for its interest in a "terminator" gene--the ultimate enforcer of genetic patents, which stymies the genetic pirate by rendering crops sterile. Deluged with criticism that such a gene will culminate some day in Third World famine, Monsanto recently agreed not commercialize the terminator, pending review by independent authorities on development. Which is unfortunate, if the real threat to the world isn't Monsanto's monopoly but rather its inability stop the bad gene's propensity to reproduce.
The real threat to the world's environment is neither monopoly nor its obverse, engineered genes going feral. The real threat--enormous, immediate, readily measurable and environmentally ruinous--lies in yesterday's genes cultivated by yesterday's farmers, on endlessly spreading acres of what was yesterday's wilderness. The U.S. numbers are bad enough: For every acre of land we occupy with homes, offices, roads and byways, Americans cultivate six acres for crops. The rest of the world's ratios are far worse. Most of what the wilderness is losing to humanity world-wide is being lost to Third World agriculture.
Almost alone in the world, the U.S. recently began to reverse the relentless expansion of its agriculture across the landscape. We harvested roughly 80 million more acres of cropland 60 years ago than we do today. Since then, vast areas of land have been restored to wilderness because the footprint of our farms has been so dramatically reduced. Estimates vary widely, and definitional debates rage, but by every serious estimate, America's forest cover today is somewhere between 20 million and 140 million acres higher than it was in 1920. By comparison, all our cities, towns, suburbs, roads and highways combined cover less than 60 million acres.
What happened? Genetic seed improvements, fertilizers, pesticides and the relentless efficiencies of corporate farming almost trebled the land-to-food productivity of our agriculture. And reforestation almost certainly accounts for a second, little noted fact: As best anyone can measure these things, the North American continent now absorbs more carbon dioxide than it emits, because our growth of new woods more than offsets our burning of old fossil fuels.
Yet for all that, agriculture still crowds out far more wilderness than all other human activities. The great green hope for genetic engineering is that it can shrink the agricultural footprint a great deal more than it already has. Wild plants convert about 0.2% of inbound solar energy to edible food. Use the technology at hand, and we can almost certainly boost a plant's fuel efficiency far more than we can boost a car's.
If we could boost plants to the point where they capture as much solar energy as our best photovoltaic cells--a plausible hope, perhaps, given the power of the genetic technology at hand--we would shrink the human footprint on the wild far more than we would by eliminating every last acre of our cities, suburbs and highways. The green case for genetic engineering is as simple and overwhelming as that.
Mr. Huber is a fellow of the Manhattan Institute for Policy Research. He is author of "Hard Green: Saving the Environment from the Environmentalists," just out from Basic Books.
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