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.

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).

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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.