"Here it was March, less than two months before what we viewed as the climactic lawsuit with Rifkin that we'd have to win fast, and there we were without a law firm," says Tim Baker. "It was like the eighth inning and the team quits. John told me, 'Go out and find a new team, we're up next.' "
Baker frantically began interviewing law firms. Oddly enough, he was on good terms with Himmelman. They had been classmates and lacrosse teammates at Williams College in the 1960s. And Himmelman recommended that Baker try the law firm of Weil, Gotshal, & Manges, where he met Jim Davis, a young partner.
Davis turned out to be yet another Washington insider who could make water flow uphill. Not only did he have a scientific background -- a Ph.D in chemistry from California Institute of Technology -- but he also had spent two years as special assistant to John Moore, then the EPA's assistant administrator for pesticides and toxic substances. Davis knew the EPA, biotech, and regulatory nuances like nobody's business. Baker signed him up immediately. (Henry later hired him as general in-house counsel.)
In April the three major environmental groups submitted to the EPA their comments concerning the permit application. Not one of them would fight it. Only Rifkin weighed in with an opposing view, arguing that the delivery microbe is known to cause a stunting disease that could spread to other plants.
"Spread" was something that had also troubled Rebecca Goldburg of the Environmental Defense Fund. "I'm concerned that it might infect wild plants," she says. "I don't want to make wild plants resistant to the insects that feed on them. I mean, wild plants are the basis of the food chain." Still, given the containment procedures the company planned for its field test, she felt confident that spread would, if anything, be minimal.
As the action moved into May, Davis went into crash mode to prepare for a Rifkin legal challenge. If Rifkin sued the EPA for issuing a permit, the Justice Department would represent the agency. But Baker was skeptical. "Having been a deputy assistant attorney general there, I knew the department could get itself fouled up," he says. "I didn't want to count on them to carry the load. I thought we should get ready ourselves."
By mid-May the Crop Genetics team was set for combat. "If Rifkin sued, he'd run into a buzz saw," Baker says. "We were prepared to fight in state court or federal court. We tried to figure out every angle Rifkin might use to come after us, then have a strategy ready for it. If he filed, we'd file our papers the next day.
"We couldn't afford to lose any time. Rifkin couldn't beat us on the merits, but he wouldn't have to. All he'd have to do was get some judge confused long enough and it would end up being mid-July -- it would be too late to plant the test crop."
In late May the EPA and APHIS issued the two experimental-use permits. It was an event of such moment that it made the "CBS Evening News." Crop Genetics was the only biotech firm in the country to have made it through the first round of regulatory hoops without being delayed or stalled.
Rifkin didn't sue. He and his staff attorney, Andrew Kimbrell, concluded that they didn't have much of a case after all -- not this time, anyway. But that didn't soften the blow when John Henry opened the legal bills: Baker's came to $50,000.
"The cost of this thing was just incredible," Baker says. "And how do you price all the time that John Henry and Peter Carlson put in, and their scientists? It turned out that we could afford it, and we did everything right. We had played error-free ball, and we were lucky. But what happens to a company that isn't lucky, or doesn't play it so well?"
At this writing, in December [1988], Crop Genetics has harvested its test corn and is compiling the results. Mind you, all this had nothing to do with proving that the product will work. It was only to show that the microbes didn't spread into surrounding plants. So far, says Henry, "things look good."
Already, he is preparing another application to conduct large-scale field tests next summer in the Midwest with his four new seed-company partners. They include DeKalb-Pfizer Genetics, the second-largest producer and marketer of field-corn seed in the world, and Rogers Brothers, the largest sweet corn-seed company. Those tests, Henry hopes, will demonstrate that the product's delivery system works.
The only thing he knows for sure is that this time around the action will be more bruising. "We'll be there for this one," says Andrew Kimbrell, Rifkin's attorney. Rifkin himself pledges that the first company that tries to test recombinant microbes on a large scale will face "years of battle in the courts and in Congress."
The big environmental groups also will be much more aggressive next time. "We thought there was very little risk associated with a small-scale test of this organism," says Margaret Mellon. "We based that largely on the containment features. But we are not as sanguine about the large-scale use of the product."
John Henry waxes whimsical about all this. "Sometimes I wonder why I ever got into such a complicated business," he muses. But he knows why -- a huge new market beckons, just as it did for his ancestor, Cyrus McCormick. Still, he says, "It's a long, long march."
