High Court Prevents GM Developers Bypassing GM Laws
22 May 2014
The High Court has quashed a decision by the Environmental Protection Authority (EPA) that would have allowed developers
of genetically modified crops to bypass New Zealand’s GM laws.
The Court found the EPA misinterpreted the law when it decided that GMOs from two new breeding techniques could go into
New Zealand fields without any formal consultation or assessment of the impacts. The EPA was also criticised for failing
to act cautiously in the face of uncertainty.
This was not a routine approval for a minor field trial. This was the EPA putting new methods for making GMOs beyond the
law without having properly understood that law or properly investigating the consequences.
The decision placed New Zealand at risk of losing overnight its status as a GM Free food producer without a public
process to assess what would be lost.
The Council believes such failures raise serious questions about the EPA’s reliability as a guardian of the environment.
The case arose from an EPA decision last April that two new techniques for plant breeding – Zinc Finger Nuclease (ZFN-1)
and Transcription Activator-Like Effectors (TALEs) – did not produce GMOs under New Zealand law.
Certain traditional plant breeding techniques are excluded from the GM laws and the EPA decision effectively added to
the exemption list. The Sustainability Council appealed that decision and its barristers, Dr Matthew Palmer and Felix
Geiringer, told the Court that only the Cabinet or Parliament can decide which techniques are exempt. The Council also
stated that the EPA had misinterpreted the law and failed to exercise proper caution – points that the Court judgment
The ruling is good news for food exporters supplying high value markets such as Europe that will generally not tolerate
any detectable level of GM content. The EU has yet to set regulations specifically for ZFN-1 and other new techniques.
If ZFN-1 crops were grown in New Zealand and contaminated exports, that production could wind up being rejected if
Europe’s GM laws end up covering the new techniques.
The records of the EPA’s decision-making committee make no mention of these market factors. Yet economic effects are
part of the overall outcomes the EPA is responsible for considering and this is one reason it should definitely have
applied caution in its decision-making.
The EPA thoroughly misjudged the decision and needs to explain how that happened and how it plans to fix the problems.
Key Background to the Court Ruling
What the EPA was asked to decide: In 2012, crown research institute Scion asked the Environmental Protection Authority (EPA) whether organisms created
using two new breeding techniques are genetically modified organisms (GMOs), and so subject to the regulatory conditions
for GMOs. The new techniques are called zinc finger nuclease 1 (ZFN- 1) and transcription activator-like effectors
The process the EPA used: Scion’s request was made under a special procedure for determining whether something is a new organism and a GMO under
the law. This process (set out in section 26 of the Hazardous Substances and New Organisms Act 1996 (HSNO)) is called a
‘determination’ and allows a committee appointed by the EPA board to make that decision. The process does not require
the EPA to consult anyone beyond government departments but the Sustainability Council was invited to comment in this
How the law defines a GMO: There are two criteria for deciding whether a plant or animal is legally a GMO:
1. Whether the organism meets the definition of a GMO in section 2 of the Act.
2. If it does, whether the organism is expressly excluded by regulations made under the HSNO Act. A regulation issued in
1998 lists all the techniques considered not to produce GMOs.
What the Committee decided: In 2013, the three-person EPA committee decided 1) that ZFN-1 and TALEs organisms do meet
the definition of a GMO but 2) are “similar to” a technique excluded from the Act under regulations. As a result, the
Committee concluded that ZFN-1 and TALEs organisms are not GMOs.
The Sustainability Council’s appeal: The Sustainability Council appealed that decision in the High Court, stating that:
• The EPA committee had overstepped its legal authority because ZFN-1 and TALEs are not excluded under a proper
reading of the HSNO regulations; and
• Only the Government has the authority to decide which techniques are to be excluded from regulation and the Act
defines a process for this that is outside EPA control.
What the High Court ruled: The High Court ruled that the EPA had misinterpreted the law it administers and quashed the determination. The
following points emerged from the judgment:
• The EPA was wrong to conclude that ZFN-1 and TALEs are not covered by the Act because they share similarities
with a technique listed as not being GM. Only those techniques specifically named in the regulations are excluded from
HSNO. (para 73)
• Parliament had made clear in the Act that decisions about what techniques are GM are to made by the government,
and where there is doubt about what the law covers, “a more cautious approach” would be to leave any change of coverage
to a change of regulation by government. (para 69)
• The EPA decision “did not sit well” with the overall purpose of the HSNO Act. In particular, the EPA failed to
apply a precautionary approach. The court dismissed the regulator’s argument that it is not required to do so for
decisions of this nature. The court said that the techniques are novel and no evidence had been presented that
demonstrated an understanding of their environmental safety. (para 68)