How the Government Got in Your Backyard

by Jeff Gillman

  For those who argue that not allowing plants to be patented will drive creative minds away from these subjects and our plant choices will stagnate, we can only respond that universities will happily be there to pick up the slack. As new varieties of plants are needed, more dollars will filter into the university system to hire more breeders who would once have worked for large biotechnology companies. We wouldn’t lose the creative breeders who make all of our transformed crops possible; rather, we’d put them into a different system, where they could do the same work and help society instead of providing their knowledge and labor to large agricultural corporations that then monopolize the market on various crops.

  Right-Wing Rating No protection for plants hurts innovation.

  Left-Wing Rating There is too much opportunity for patents to be abused, especially as they relate to plants, in our current system. Plants are everyone’s property.

  Policy Option Three: Utility Patents Should Not Be Used for Living Organisms

  Utility patents were conceived, and most of the legislation written, before the advent of modern biotechnology. This technology, which allows for the transfer of genes between two very different creatures, along with the use of the broad utility patent to protect the genetically transformed product, makes certain patent-owning companies just too powerful. Whichever company produces the best gene (or genes) for a particular plant rules the market for that crop. In classic breeding, where the best plants were continually bred together to eventually produce an even better plant, changes tended to be incremental. A new variety was probably better than an older one, but this new variety didn’t overshadow the older one to such an extent that the older one wouldn’t be planted anymore. Biotechnology offers the opportunity for a particular variety of crop to be far superior to the crops that came before it, and so these new crops suddenly dominate the market.

  If transformed crops were protected with the Plant Variety Protection Act instead of regular patent law, farmers would still need to purchase seed from the company that developed the genes, but after that initial purchase they could use seeds from their own plants to plant their crops the following year. This would take quite a bit of the power away from the biotechnology companies, including some of their earning potential. It would also force biotech companies to be more innovative because they could not simply insert a gene into a plant and rely on the royalties from sales of that plant. Instead, they would be forced to continue working on new varieties so that they could release new and better plants more frequently. After the first year, when a premium would be charged for the technologically advanced seed, the biotech companies would be forced to charge a more competitive fee for the seed, because they would be competing with the lower costs of farmers using their own seed.

  Also, protecting plants under the Plant Varieties Protection Act would reduce biopiracy. No longer could a plant be patented using a utility patent, thereby preventing the indigenous culture that originally used the plant from profiting from it, and allowing a “pirate” to usurp control over the plant. The Plant Variety Protection Act is very specific in that it controls a variety that has been bred and is propagated through seeds. Because it only controls a variety, it would be impossible for a biopirate to prove that the seeds that an indigenous group had been growing for years were the same as the one the biopirate had patented and to sue them. The utility patent simply offers too much control over a plant, restricting creativity and research. The Plant Variety Protection Act narrows this control considerably, and includes a clause that allows for the use of plants for research.

  Right-Wing Rating Using the utility patent for plants allows companies that take risks to succeed.

  Left-Wing Rating The utility patent is much too powerful and infringes on the rights of others, including other cultures. Using the procedures of the Plant Varieties Protection Act would solve that problem and be much fairer.

  The Bottom Line

  There are a lot of things to dislike about the current patent systems for protecting plants, especially in terms of utility patents. Though they are used infrequently for plants, they are an extremely powerful tool that can prevent research on patented plants, provide an opportunity for biopiracy, and offer biotech companies an excessive amount of control over what farmers plant in their fields. On the other hand, from a capitalist’s viewpoint, these patents allow the biotech companies the greatest return on their research dollars, and it takes a lot of dollars to create these fancy plants, not to mention getting them through all of the government hurdles to get them to market. Realistically, if the big biotechnology companies did not have the protection of utility patents it seems unlikely that biotechnology would have progressed as far as it has in this country (whether you support biotechnology is another question).

  Regardless of how plant varieties are protected, our system does need some additional work, especially regarding the issue of how novel and useful a plant needs to be to warrant a patent. The laws also need to do a better job of preventing biopiracy.

  CHAPTER 8

  Invasive Plants:

  Kill the Aliens?

  CONTRARY TO WHAT most people assume, the food production system of the United States has very little to do with foods native to this country. Much like its human population, our nation’s food system is built almost entirely on plants that came from somewhere else. When European settlers first arrived, Native Americans taught them to use foods such as blueberries, and sugar extracted from sugar maple trees, both of which are native to the United States; and corn, which had been introduced to North America from South America by Native Americans centuries earlier. But Europeans already had a taste for foods from their own homelands, so they introduced wheat, apples, citrus, and many other plants that, if they hadn’t originated in Europe, were at least well established there. Other crops with South American origins, but which were introduced by Europeans, were the peanut and potato. Currently, about 99 percent of U.S. cropland is planted in crops that are not native to the United States. Thomas Jefferson was a great advocate of such importation: “The greatest service which can be rendered any country is to add an useful plant to its culture.” Unfortunately, not all of the plants (or animals) delivered here from other parts of the world have turned out to be beneficial.

  Over the years, humans have introduced numerous plants. Some have behaved themselves, and some have become invasive or noxious weeds. But what is a noxious weed? And how do we know if we have one? Well, the federal government creates a list of these weeds, and various states have their own lists of noxious weeds, as well. The definition of a noxious weed, according to the federal government, is “any plant or plant product that can directly or indirectly injure or cause damage to crops (including nursery stock or plant products), livestock, poultry, or other interests of agriculture, irrigation, navigation, the natural resources of the United States, the public health, or the environment.”

  Contrast this with the federal government’s definition of an invasive species: “Those species whose introduction does, or is likely to, cause economic or environmental harm or harm to human health.” As you can see, the big difference is that invasive species are introduced to a region, while noxious species may be native to a region. In general terms, when the government describes a plant using the term noxious weed, those plants are considered worse than invasive plants because they tend to be more aggressive, and/or more dangerous to animals, humans, or crops.

  Various methods have been tried to restrict the damage caused by introduced plants and their associated fauna, but the most frequent method has been limiting the movement of these plants. During the 1800s, when people across this country first restricted plants from being moved from place to place, the reason was not because anyone was particularly frightened of the plants themselves, but because they were worried about the insects and diseases that might travel with the plants and infest other locales. We have a long history of introducing a new crop, and then inadvertently introducing something
that destroys that crop—dating back to 1660, when wheat stem rust found its way to the United States after wheat had been introduced in the 1620s.

  The question we need to ask ourselves at this stage in the ecological life of the United States is whether we should use our government to prevent—or to encourage—the introduction of plants and animals onto American soil.

  There are many environmentalists who promote the idea of ecologically sound gardening and who prefer using native plants. They usually suggest that natives offer a more stable ecosystem that is worth preserving. Douglas Tallamy, the author of Bringing Nature Home (2007), is perhaps foremost among those who propose that we try to plant more natives and avoid exotic plants, because native plants are able to sustain populations of insects that they have coevolved with, while exotic plants cannot. Perhaps that’s true, but then those exotic plants would be less prone to insect damage and hence better ornamental plants. And besides, if a native plant can’t compete without our help, then isn’t this artificial maintenance of its populations just a stalling tactic?

  The question we need to ask ourselves at this stage in the ecological life of the United States is whether we should use our government to prevent—or to encourage—the introduction of plants and animals onto American soil. It’s not an easy question, and there is a lot of history behind the politics.

  The Science

  Although much of this chapter is specifically about plants and the pests that attack them, most of the information also relates directly to insects and other animals that are noxious and/or invasive. Zebra mussels, Asian carp, and starlings are all critters that have come here and made space for themselves by displacing native species, and they deserve to be mentioned in any discussion of noxious and invasive pests. In 2000, David Pimentel, then a professor at Cornell University, published an article examining the effects of introduced plants and animals on our economy. He calculated that the cost of invasive species to the United States is about 138 billion per year (and those are 1999 dollars). This includes losses caused by dogs, cats, and rats, all of which are introduced species. The greatest costs, however, come from introduced plants, followed by microbes and arthropods (insects and mites). It’s only fair to mention, however, that these costs often relate to their negative effects on crops that were, themselves, introduced. Both dandelions and crabgrass, for example, were introduced into the United States as crop plants: dandelions by colonists in the seventeenth century as an herb for making wine, and crabgrass by the U.S. patent office in 1849 as a forage crop. Today these plants are weeds that infest lawn grasses, most of which were themselves introduced from Europe.

  Many plants have found their way to the United States, resulting in a disruption of the country’s ecosystems. More than 4200 plants have escaped cultivation, about 8.4 percent of the total number of plants that have been introduced. A list of the most noxious of these plants would certainly include kudzu, a vine introduced in the South to help prevent erosion along stream banks, but which now climbs trees at the edges of forests, shortening their lives and threatening native plants that would ordinarily live in those locations; buckthorn, a shrub that was introduced to the United States because of its attractive structure and functionality in shrub borders, but which now invades forest borders; and Canadian thistle, which, despite its name, is not native to the North American continent, and which parks itself in lawns and fields across the United States.

  The fundamental problem with having a noxious or invasive species take over a location is biodiversity. Having many diverse species in a location allows that location to be more productive and healthier than if only a single species is present and native ecosystems tend to be more diverse than ecosystems in which a few species of invasive plants have taken over. In theory, the diversity present in a native ecosystem allows the location to adapt as the environment changes over tens, hundreds, and even thousands of years. One or another of the natives that is more adapted to the change will become dominant, while the other natives take a backseat, not disappearing, but instead waiting for their chance, which will almost certainly come. When a nonnative species is introduced to an area where it can easily outcompete native plants because it is so well suited to that area (and safe from any serious threat from herbivores), the result is not only a reduction in the diversity of plant species, but also a reduction in the diversity of insect and even bird and mammal species.

  Not every scientist agrees that diversity is always, or even frequently, threatened by nonnative species. Because nonnative species are different from native species, they can actually increase the diversity in an area. It is commonly accepted that on an island, where native species have nowhere to go when threatened, introduced pests can cause extinctions of native species. On a huge continent such as North America, however, this is very rarely the case. Mark Davis, a professor of biology at Macalester College and author of the book Invasion Biology, asks the question, “How many species of plants in the U.S. have gone extinct because of the thousands of nonnative plants that have been introduced?” His answer: “zero.” This isn’t to say that nonnative species can’t negatively affect native species, and nobody is recommending introducing more potentially invasive species to our continent. But those plants, insects, and fungi already introduced here may not be having the deleterious effects on our ecological diversity that we assume they are.

  One of the fundamental problems with invasive plants is that we rarely know that a plant is truly invasive until it has established itself, and once it establishes itself it is almost impossible to get rid of. Marcel Rejmanek, a professor at the University of California, Davis, and his colleague Mike Pitcairn at U.C. Berkeley concluded that efforts to eradicate populations of exotic invasive plants established on less than one hectare of land are likely to succeed, while eradicating these plants from one to one hundred hectares will only succeed some of the time, and trying to eradicate a population that covers over one hundred hectares is all but an effort in futility.

  A typical example of what an introduced species does to a native species that fulfills a similar role in the environment is the slow overtaking of our native sugar maple by the introduced Norway maple. The Norway maple came from Europe in the eighteenth century as a shade tree, and it grew more quickly and filled in faster than the native sugar maple. It was, and still is, planted in almost any location where quick shade is needed (and wherever it is legal to plant it). The problem is that the Norway maple has escaped its urban and suburban confines and now competes with sugar maples in natural forests, where it fares extremely well because of its more efficient use of light, nutrients, and water. Norway maples can grow twice as fast as sugar maples and cutting down Norways isn’t particularly helpful because the seedlings are more likely to repopulate an area than seedlings from native sugar maples. The presence of such an excellent competitor doesn’t spell the end for sugar maples, but it does mean that sugar maples are less abundant and less likely to repopulate an area naturally than they were before the Norway maple was introduced.

  The Norway maple and sugar maple compete for space in both virgin forests and parking lots. There certainly are a lot more parking lots in the United States today than when settlers first arrived, and, for the most part, plants that we consider invasive seem to like it that way. The United States today is not the country that it once was. Forests have been decimated, soil has been tilled, and even those beautiful meandering streams of the Northeast turn out to have been encouraged by humans who built dams and mills. The plants we now denigrate as invasive and noxious weeds are simply more appropriate for the current man-made conditions and they are being blamed for something that really isn’t their fault. It turns out that, as the carbon dioxide in our atmosphere increases (presumably because of humans), weeds that we consider invasive tend to be able to deal with the situation more effectively than other plants. Canadian thistle in particular thrives on high levels of carbon dioxide. It is entirely possible that as our environment changes, plan
ts that were not weeds will become weeds, and existing weeds will become even more of a threat.

  It seems that, as Peter Del Tredici points out in his 2006 article “Brave New Ecology,” many restorationists (those who favor native plants) have “faith-based” notions of restoration that have little to do with reality. The world is a constantly changing place, and as it changes, different plants may be better adapted for the new conditions than those that were there before. This is certainly true on the small scale. For example, a new building site where the earth has been compacted by the constant movement of heavy machinery won’t be appropriate for most plants—except those that the government now considers invasive. It takes something special to be able to infest an area that man has destroyed. But on the large scale, things are shifting too. Changing climates, acid rain, and increasing carbon dioxide in the atmosphere may inhibit the ability of plants that we want to encourage to compete successfully with plants that we consider invasive.

  Changing climates, acid rain, and increasing carbon dioxide in the atmosphere may inhibit the ability of plants that we want to encourage to compete successfully with plants that we consider invasive.

  Along with the loss of native plants comes the loss of native herbivores and other animals that use particular species of plants for food or shelter. One of the perceived perks that invasive plants enjoy when they arrive in a new location is that they do not have any predators that are adapted to feeding on them. So they thrive, easily out-competing native plants and animals, which may lead to the loss of the natives. This is true of such introduced plants as purple loosestrife, brought to the United States for ornamental and medicinal purposes during the 1800s, which quickly took hold and began to do its damage. Purple loosestrife is a poster child for invasive species. It produces an incredible number of seeds over a single season, and crowds out native sedges and grasses, reducing habitat for waterfowl, such as ducks and other marsh birds. Besides a few insects that have been brought to this country to control it, there really aren’t many things that will feed on or infect it. This resistance to herbivores was one of the reasons that this perennial was such an attractive and popular ornamental for so long, until selling it was banned in many states. Human intervention may be the only help for the many native plants competing with purple loosestrife and the many insects that feed on those plants. The same is true for a whole host of other threatened native plants.