The UK was one of the first countries in the European Community to develop a legal framework for genetic engineering and laws governing the deliberate release of genetically modified organisms have been in place since 1990. Anyone wishing to release GM organisms into the environment, or market them, must apply to the Government for consent. The application must be advertised in local newspapers and must include an assessment of the risks to human health and the environment.
The laws do not, however, go on to consider who will take responsibility for the consequences of growing the crops. In the absence of any specific legislation, it is the farmers who plant the crops who may well be liable for any damage caused to the environment. A farmer could be sued by neighbouring farmers whose organic crops have been killed by powerful herbicides sprayed on the genetically modified crops, or by residents whose gardens have become overrun by "superweeds".
If a farmer is sued, it will not matter how careful he has been in spraying the herbicide or how many precautions he has taken to contain his crops. The very fact that the damage has happened will be enough to make him liable, providing the damage is reasonably foreseeable. He may have to pay for the loss of earnings suffered by the farmer whose crops were killed. He may have to pay for the cost to local residents of clearing up their gardens. What he will not have to pay for is the birds who disappear because the insects on which they feed have been killed by the herbicides. As the law stands, no one will be responsible for the loss of birds or any other wildlife.
It is worrying that our wildlife can disappear and nothing can be done about it. It raises important public policy issues, as does the question of whether we want farmers, the seed companies or society to bear the burden of the developing technology for modifying genes. Such huge issues should be properly debated in Parliament and reflected in legislation.
There is no sign of this happening and, instead, courts up and down the country will have to grapple with these questions. Yet the courts themselves have recognised that they are not the right forum. The House of Lords made this clear in a recent case on environmental pollution, stating that "... it is more appropriate for liability in respect of operations of high risk to be imposed by Parliament than by the courts. The protection of the environment is now perceived as being of crucial importance to the future of mankind ... given that so much well-informed and carefully structured legislation is now being put in place for this purpose, there is less need for the courts to develop a principle to achieve the same end and indeed it may well be undesirable that they should do so".
The introduction of a legal liability regime will not, however, solve all the problems. Cleaning up the environment can cost a lot of money which, at the end of the day, may depend upon the availability of insurance. Over time the insurance industry may develop new policies which specifically cover the risks from GM crops. At present, however, most insurance policies exclude from their coverage any damage to the environment caused by contamination or pollution unless it arises from a sudden event. "Superweeds" may be regarded as a form of contamination. In the circumstances, one way forward could be to follow the approach of international maritime law to the clean- up of oil spills. The seed companies would have to pay money into a "compensation fund" before being allowed to market any genetically modified crops.
Justine Thornton is a barrister specialising in environmental law at Simmons & Simmons Solicitors. She is co-author of `Environmental Law'.