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Will Genetically Engineered Chestnuts Be Roasting on an Open Fire of Litigation?

Thomas Parker Redick


  • Discusses the legal threats that may exist to the release and unconstrained use of the American chestnut with genes genetically altered to resist fungal assaults.
  • Looks at legal barriers to growing the genetically engineered Chestnut tree.
Will Genetically Engineered Chestnuts Be Roasting on an Open Fire of Litigation?
Foster.r via Getty Images

This article will discuss the legal threats that may exist to the release and unconstrained use of the American chestnut with genes genetically altered to resist fungal assaults from the blight that devastated this iconic American tree.

Currently being tested in field trials, the future unrestricted release and use of the American chestnut could stir enough controversy among anti-biotech activists to lead them to file injunctive litigation to stop the launch (i.e., a release allowing unconstrained use), either through the National Environmental Policy Act (NEPA; a commonly used tool, with attorneys’ fees paid by the government to successful litigants) or the novel common law approach, anticipatory nuisance.

While the regulatory barriers are significant to introduction of this genetically engineered (GE) tree, the litigation environment might prove even more challenging.

I. Is it Time for GE Trees?

In a 2019 review of efforts to introduce GE trees, the authors cite the lower social acceptance of GE tree deployment, due to perceived uncertainties about long-term risks for the natural forests that such plantations could cause, and the public demand for absolute transgene containment. Ilga Porth & Yousry A. El-Kassaby, Current Status of the Development of Genetically Modified (GM) Forest Trees World-Wide: A Comparison with the Development of Other GM Plants in Agriculture, Cabi Reviews (2019),

The authors note the contrast with the success of GE agricultural crops widely planted in major grain exporting nations, with over 170 million hectares, i.e., 11 percent of the total managed cropland globally. The worldwide market value exceeds US $15 billion. In contrast, the only GE forest trees worldwide are GE poplars commercially grown in China.

Another GE tree that is close to commercialization in the United States and Brazil is the GE eucalyptus. ArborGen Brazil is field-testing herbicide tolerant, drought tolerant high-density and high-growth eucalyptus products developed using biotechnology.

The United States Department of Agriculture (USDA) held a three-year process ending in 2016 with many stakeholders in forestry to discuss the pros and cons of introducing GE trees into the wild, including the American Chestnut.

II. Why Bother Bringing American Chestnuts Back?

In 2013, State University of New York College of Environmental Science and Forestry tree geneticists, Charles Maynard and William Powell publicized their creation of an American chestnut tree that resists the blight that devastated this icon American tree in the early 20th century. Glenn Coin, Breakthrough at SUNY-ESF: Genetic Engineering May Save the Nearly Extinct American Chestnut, (Oct. 6, 2014), Some of the benefits of a GE American chestnuts would be its ability to grow in otherwise unusable soil to restore “degraded landscapes” (e.g., restored mining lands). It also has the potential to be an abundant and incredible source of nutrition for a world that will need more ways to feed nine billion people by 2050. United Nations, Department of Economic and Social Affairs, Population Division, World Population Prospects 2022: Summary of Results, UN DESA/POP/2022/TR/NO. 3. (2022)

In order to be able to plant the transgenic seedlings in public spaces, Powell’s team needs to report different research and metrics to the U.S. Department of Agriculture, Food and Drug Administration (FDA), and Environmental Protection Agency and conduct a multiyear regulatory assessment process for each one. “That really stifles innovation in environmental conservation,” he added.

In terms of a carbon footprint, the non-water weight of the American chestnut, like other trees, is roughly half carbon. Few organisms suck carbon out of the air faster than a growing chestnut tree, and its wood has a life cycle analysis that sets it above other trees. The new chestnut will be birthed into an old, broken world. It will have its work cut out for it. Gabriel Popkin, Can Genetic Engineering Bring Back the American Chestnut?, N.Y. Times, (April 30, 2020),

No surprise that an essay in The Wall Street Journal suggested, “Let’s farm chestnuts again.” Charles C. Mann’s article makes the case for bringing back this iconic tree that was so productive it could feed a family of four. Charles C. Mann, Let’s Farm Chestnuts Again, Wall Street J., (May 9, 2019),

A 2020 petition to the U.S. Department of Agriculture to deregulate a genetically engineered American chestnut variety (known as Darling 58) for unrestricted planting triggered public comment period with 63 percent favorable responses (34 percent against, 3 percent neutral), a surprisingly high level of public support for a GE organism.

With comment ending in September 2021, the EPA’s Environmental Impact Statement process and the FDA’s evaluation of possible health issues associated with large-scale planting of the tree should be nearing completion in 2022. Ken Baker, Can We Restore the Near-Extinct American chestnut Tree? Decision Nears on Approval of Genetically Engineered Species, Fremont News Messenger (March 2, 2022).

The regulatory hurdles are just the first in the race to launch this iconic American tree. To avoid litigation under the National Environmental Policy Act or common law nuisance, other issues will need to be addressed.

III. Legal Barriers to Growing the GE Chestnut as Planned

1. Anticipatory nuisance injunctions

A GE American chestnut could be targeted for anticipatory nuisance by opponents who do not want it released widely or grown in the wild.

The doctrine of anticipatory nuisance has deep roots in the common law, where the law of nuisance and trespass protected property owners from neighboring intrusions. The first environmental impacts to trigger liability were handled through nuisance law throughout the history of the common law. In 1887, the U.S. Supreme Court first recognized a role for anticipatory nuisance as a tool to prevent a public nuisance from emerging. Mugler v. Kansas 123 U.S. 623 (1887). One hundred years later, the leading book on tort law, Prosser on Torts (5th Ed., 1984) confirmed the existence of this tort, stating that probability (50 percent+) not mere possibility, of a nuisance could justify granting an injunction. Some states (e.g., Alabama and Georgia) have statutes enabling it. Nuisance law has evolved to operate in parallel to federal statutes that govern adverse impacts of pollution, and where the federal and state statutes fail to offer protection from a nuisance, the common law remedies including an injunction beforehand, and compensation claims after harm occurs.

The state of Illinois has two of the leading anticipatory nuisance cases, involving a chemical facility, Wilsonville v. SCA Services Inc., 426 N.E.2d 824, 842 (Ill. 1981) and concentrated animal feeding operation (CAFO) that had a state permit. Nickels v. Burnett 798 N.E.2d 817 (Ill. App. 2003). Iowa law was applied by a federal court to enjoin a CAFO in Rutter v. Carroll Foods, 50 F. Supp. 2d 876 (N.D. Iowa 1999). An Oklahoma court enjoined a state-approved landfill due to an alleged high probability of contaminated leachate from the landfill to neighboring landowners. Sharp v. 251st St. Landfill, Inc. 925 P.2d 546 (Okla. 1996). Many cases are collected from various states over the last 100 years in Margaret Grossman, Anticipatory Nuisance and the Prevention of Environmental Harm and Economic Loss from GMOs in the United States, 18 J. of Envtl. Law and Practice, 107 (2008) (pdf on file with author).

Where plaintiffs fail to show a serious permanent intrusion and the defendant’s proposed activity has significant social benefit, the court may deny an injunction for anticipatory nuisance. Id., citing Duff v. Morgantown Energy Associates, 421 S.E. 2d 253 (W. Va., 1992); see also, Burch v. Nedpower Mount Storm, LLC, 647 S.E. 2d 879 (W.Va. 2007) (wind power beneficial, state-approved, and not enjoined). As a result, the supporters of the restored American chestnut must document the societal benefits that would arise from the planting of a restored American chestnut.

The export or non-GMO (genetically modified organism)/organic markets for chestnuts and for chestnut hardwood might be impacted adversely by the marketing of a GE American chestnut without complete containment. Public nuisance for disruption of a major export market—In re Syngenta China Corn (Viptera)and private nuisance for pollen drift onto one’s farm—In re Aventis (Starlink)have been recognized as viable claims against biotech seed companies selling products that lack required regulatory approval at home or abroad. No court, however, has recognized a duty to protect an organic or non-GMO grower from pollen drift, since they assume a duty to maintain their own containment in exchange for a premium payment.

In the only reported case involving anticipatory nuisance and biotech crops, Hoffman & Beaudoin v. Monsanto Canada, 2005 SKQB 225, appeal dismissed, 2007 SKCA 47, biotech canola that was unapproved in the European Union (EU) was sued to stop its commercial sale. The court rejected plaintiffs’ claims that defendants substantially contributed to a nuisance when they dropped export-oriented identity preservation and failed to safeguard canola exports to the EU with their voluntary identity-preservation program, citing U.S. case law in support.

To prevent an anticipatory nuisance claim, the economic interests of non-GMO chestnut growers will need to be assessed. Major states for chestnut production include California, Oregon, Washington, Michigan, Florida, Ohio, and Virginia. Robert C. Hochmuth et al., An Introduction to Production, Marketing, and Economics of Growing Chestnuts in the Southeastern United Sates (Oct. 3, 2018),

2. National Environmental Policy Act Injunctions

The GE American Chestnut may also encounter litigation under the injunctive power of the National Environmental Policy Act (NEPA).   A series of injunctions vacating USDA approval starting in 2007 have delayed approval in the United States for Roundup Ready (RR) Alfalfa and RR Beets. The basic argument has been that USDA approved the particular biotech crop before conducting sufficient field testing and assessing all environmental and economic impacts (e.g., to exports, to non-GMO, or organic crops). In a case involving RR bentgrass that had crossbred with wild grasses adjacent to the field trial test fields, the court held that USDA had acted arbitrarily in denying the plaintiff’s claim that the GE bentgrass from the Scotts Co. and Monsanto should be listed as a noxious weed under the PPA. As a result, the court found that USDA had violated NEPA by failing to consider whether field trials were exempt from the need for an environmental assessment or environmental impact statement. International Center for Technology Assessment et al. v. Johanns, 473 F. Supp.2d 9 (D. D.C. 2007).

The upside of having a thorough environmental impact statement during approval of the GE American chestnut could be the prevention of potential NEPA claims and might prevent anticipatory nuisance against the biotech seed company, if the USDA were found to have adequately considered the risk to exports in its EIS evaluating that company’s regulatory submission.

Given the intent to release the GE American chestnut into the wild, a consultation with the U.S. Fish and Wildlife Service (USFW) may be worth considering before release of this tree into the wild. It has jurisdiction over wildlife refuges that might be available for a limited initial release of this tree. Janet Carpenter, Impacts of GE Crops on Biodiversity (June 2011), U.S. Fish and Wildlife Service,

IV. Conclusion

Issues relating to commercial markets increasingly are becoming the basis for regulatory delays and costly compensatory nuisance litigation. Any new species of tree using GE traits can expect a full regulatory review (and such a full regulatory review might insulate it from a NEPA attack). Only by careful consideration of all possible impacts, including impacts to the commercial marketplace, can this iconic American Chestnut grow to maturity in the United States.