Yellowstone bioprospecting suspended by US Court

by Chakravarthi Raghavan

Geneva, 26 March -- A bio-prospecting deal between the US National Park Service and a private corporation, Diversa Corporation, enabling Diversa to "harvest", patent and commercialise micro-organisms and other resources of thermal sprints in Yellowstone National Park has been "suspended" by a court order in Washington DC.

Acting on a petition from four public interest nongovernment groups, the US Federal District Court in the district of Colombia issued the order, suspending implementation of the agreement between National Park Service (NPS) and Diversa, and asked the US department of Interior to prepare an environmental assessment in accordance with the requirements of the Environmental Policy Act.

According to a press release and communication from Beth Burrows of the Edmonds Institute, one of the plaintiff NGOs that filed the suit in March 1997, the court accepted the right of the NGOs to challenge the deal and ruled further that they could seek a further judgement on whether the Department of Interior (DOI) ever had the legal authority to enter into cooperative research and development deals (CRADASs), such as the one attempted with Diversa.

The ruling may also have impact on similar bio-prospecting deals that US corporations, some university "researchers" and some international organizations, inter-governmental and non- governmental, that have been promoting such prospecting deals in developing countries, for exploitation of their bio-diversity.

The three US groups, all non-profit groups, that challenged the NPS-Diversa deal were the Edmonds Institute (in the State of Washington, USA), the International Centre for Technology Assessment (ICTA) and the Alliance for the Wild Rockies.

The US DOI had in August 1997, on the occasion of the 125th anniversary celebration of Yellowstone, announced the deal with Diversa as an important breakthrough allowing Diversa to remove the park resources (in this case micro-organisms from the thermal sprints) and use them to develop patentable products.

In return for granting such access, Yellowstone was to receive a small fee, a percentage of royalties from any products that might ensue, and assistance in scientifically cataloguing the resources.

The NPS and the DOI have not made public the amount of money that Yellowstone would get in return. Both the Edmonds Institute and the ICTA are pursuing a Freedom of Information Act suit to get the details, which so far had been kept secret as a contract involving commercial secrecy, published.

The deal involves what the three litigants call "living gold" -- micro-organisms (that under WTO/TRIPs are patentable as such) that apparently exist only in the environment at Yellowstone, in the highly acidic and extremely hot thermal pools and geysers.

These micro-organisms and the enzymes they produce are considered to be extremely useful in industrial processes - ranging from paper- and beer-making to meat tenderizing and pharmaceuticals.

One such micro-organism, thermus acquaticus, taken from Yellowstone a few years ago and one of its enzymes have been patented and have become very profitable to the Swiss pharmaceutical TNC, Hoffman LaRoche -- for about $100 million a year, with earnings projected to increase to $1 billion by 2005.

Neither the national parks nor the US treasury gained anything.

And while the UN biodiversity convention, enables countries to exercise sovereignty and regulate access to bio-resources in return for access to the technology and/or a share in profits of any technology or product developed, the US which is not party to the Convention, has been trying to block this, and use the TRIPs agreement as well as the other agreements of the WTO to get "unrestrained access".

The US NPS saw the agreement with Diversa as a cure for its thermus acquaticus dilemma, and a model for many more such deals. The NPS came to a deal with Diversa through its CRADA, in order to avoid stringent requirements for public notification and involvement required by the National Environmental Protection Act (NEPA).

The Edmonds Institute and the ICTA who came to know of the deal even before it was announced at the 175th Yellowstone anniversary celebrations, filed a legal petition with the DOI - asking the agency to drop the deal, open the decision-making process to public scrutiny and participation, and undertake an environmental impact assessment required under NEPA.

This petition was denied in January 1998 by the NPS director, whereupon the NGOs filed a suit, after extensive efforts to obtain details of the agreement through the Freedom of Information Act.

In his ruling, Judge Lambeth has underscored the importance of the case and notes that the Yellowstone-Diversa CRADA deal marks the first time in the (US) history that an American national park would gain financially from scientific discoveries within its borders.

"Bioprospecting," he said, "presents a totally new, related (whether the fundamental nature is different from traditional consumptive or indistinguishable is a matter of much debate) use that targets microscopic resources - the genetic and biochemical information found in wild plants, animals and micro-organisms".

"The precise number of bio-prospecting CRADAs being considered department-wide by defendants is unknown," the Judge said. "But a number of parks other than Yelllowstone hold great potential for bio-prospecting. Judging by the DOI solicitor's September 1998 memorandum, other federal lands may be under consideration for bioprospecting CRADAs. Nevertheless, as far as the court is aware, the defendants have not conducted a rule-making procedure for this change in policy, nor have defendants solicited public comment informally. The defendants have declined requests from members of Congress seeking information about the financial aspects of the Yellowstone-Diversa CRADA. Essentially, the future of bioprospecting on federal lands in the US appears to be a work in progress but the government as of yet has not engaged in any public debate on the issue nor made any definitive policy statement through required regulations or less formal means."

Although each sample taken from Yellostone may be the size of a test tube, "the overall impact of the specimen collection authorized by CRADA and the corresponding permit is not teaspoon- sized," the Judge said. As described in the CRADA's statement of work, Diversa plans to study microbes present in a wide array of eco-systems and 'systematically sample' the sites in order of their uniqueness and genetic diversity. This will entail a significant amount of collection throughout a large area of the Park and by the CRADA's own terms, is expected to have a duration of at least five years. "Taken together the amount of tea-spoon sized samples can hardly be considered so inconsequential as not even constitute a cognizable injury to the plaintiffs' legitimate aesthetic and recreational interests (a contention of the NPS and DOI, in the suit)... The defendants themselves proclaim the ecological significance of Yellowstone's thermal features.

"There can be no debate that CRADA is a precedent-setting agreement within the National Park System and the DOI in general. The first agreement of its kind, CRADA was announced in the presence of the Vice-President (Al Gore), the Secretary of the Interior, the Director of the Park Service and the Superintendent of Yellostone. As many as eighteen other entities have already discussed similar agreement with the defendants," Judge Lambeth added in handing down his ruling.

A co-plaintiff in the case, Phil Knight, an Yellowstone guide and outfitter commented on the ruling: "Yellowstone's unique features are not some open treasure chest for corporations to exploit. With this decision, Yellowstone's integrity will be protected for generations to come."

Though Beth Burrows and the Edmonds Institute, filed the suit focusing on the exploitation of bio-diversity in US public domain for private profit, she and other such NGOs have been campaigning against appropriation through patents and other private property rights of bio-diversity -- in the United States by deals between the government and corporations, as in this case, and by foreign corporations in the developing world, with US government help and pressure, often with developing country governments either ignorant or entering into deals promoted under technical assistance programs run on extra-budgetary resources by international organizations that are using the desperate needs of treasuries for foreign exchange to broker and strike such deals.

Burrows said she and others were pursuing the case "due to its patenting, democratic processes and other impacts... The favourable decision (by the judge) means that the commons still has meaning in the US, citizens have legal standing to bring suits about abuse of the commons, and corporations do not quite have the clear field they may have wished for."

Several developing country NGOs find their own governments not able to or willing to stand up against such corporate greed, and the WTO-based multilateral system. As a result, though opposed to US unilateralism, they nevertheless are trying to exploit the opportunities of US law and court processes (that US public interest NGOs can invoke) to counter such corporate deals and their own governments' failures.

According to Joseph Mendelson, legal director of the ICTA and lead attorney on the Yellowstone case, the ruling mandates that the US public, the owners of the parks, have to be consulted. Any commercial exploitation has to go through a public review, and the decision "effectively prevents the exploitation of the natural parks solely for commercial gain."

Another plaintiff, Mike Bader, executive director of the Alliance for Wild Rockies said the NPS and the DOI had embargoed on a dramatic shift of management policy that would have affected the integrity of Yellowstone and the park system for years to come. "They did a deal without the knowledge and consent of the American people and without any review of the environmental and aesthetic aspects."

The above article was first published in the South-North Development Monitor (SUNS) of which Chakravarthi Raghavan is the Chief Editor.