Bacteria Can Be Released After Evaluation

A U.S. Court of Appeals panel here ruled yesterday that the National Institutes of Health may allow genetically engineered bacteria to be deliberately released into the environment but only after evaluating the environmental hazards.

The three-judge panel upheld a U.S. District Court decision that NIH had "not yet displayed the rigorous attention to environmental concerns demanded by law" when the agency approved a University of California plan to spray a potato field with an altered bacterial strain that could retard the development of frost.

Last May, U.S. District Court Judge John J. Sirica granted an injunction blocking the experiment that was to have been the first deliberate release of genetically modified organisms. The injunction also prohibited NIH from approving any other "deliberate release" experiments until it could be determined whether the agency had violated the law in approving the first test without fully assessing environmental impact.

Yesterday's decision upheld the part of the injunction that stopped the California experiment, but overturned the part that prohibited NIH from approving any other deliberate release experiments. Nonetheless, the appeals court warned NIH that it must conduct formal environmental assessments for each experi- ment it wants to approve and that the agency "should at least consider" preparing a so-called programmatic environmental impact statement covering all deliberate-release experiments.

The unanimous decision was rendered by Senior Circuit Judge George E. MacKinnon and Circuit Judges J. Skelly Wright and Abner J. Mikva.

The original injunction had been sought by Jeremy Rifkin, a social activist who has campaigned against a variety of genetic engineering experiments. "We're very pleased with the court's decision," Rifkin said, calling it "a victory for the environment and public health."

Bernard Talbot, an NIH official who helped develop the agency's guidelines on genetic engineering research, said his agency had not reviewed the decision but added that NIH had conceded that it should conduct environmental assessments on each proposed experiment.

Talbot said NIH has drafted a 60-page environmental assessment of the California experiment. Although the appeals court decision said the California experiment could proceed if such an assessment were completed, Rifkin's lawyer, Edward Lee Rogers, said it was possible that Rifkin might challenge the assessment's adequacy in a new suit.