Federal Judge Kicks GMO Ban in Hawaii

Hawaii is now free and clear of any and all GMO cultivation bans! While that’s certainly a reason to celebrate for the islands’ farmers, the decision actually has potential for supporting farmers throughout the country.

Last November, voters in Maui County, Hawaii passed a ballot proposal that banned the production of genetically modified crops within the county. During the same election, voters in Kaui County and Hawaii County also passed similar measures. As I reported previously, another federal judge in Hawaii ruled that the Kauai County ban was preempted by state law and blocked enforcement of the ban. That same judge also concluded the Hawaii County ballot initiative was preempted by state and (partially) federal law.

Late last week, federal Judge Susan Oki Mollway similarly overturned the ban in Maui County, holding  that the Hawaii County law was preempted by state and federal law. Specifically, the federal Plant Protection Act (PPA) and a state law regarding unwanted plants. Therefore, the law could not be enforced and the ban was struck down.

Also, unique and interesting to this particular ban, is the fact that Monsanto and Dow Chemical actually have research farms in Maui County. Obviously, the warm weather allows the companies to do significant research year round. While this didn’t influence the court’s decision, it makes the victory a little sweeter.

So, how is this potentially good for all farmers? Let me explain…

Preemption

First, let’s explore what it means that a law has been “preempted.” As you’re probably aware, the United States has a hierarchy of laws – the Constitution trumps federal laws, which trump state laws, which trumps local laws. In other words, laws created and implemented farther down the chain cannot be in direct contrast to laws that are higher on the chain. For example, if the Constitution makes X legal, a federal law making X illegal would be unenforceable. Likewise, if a state law also tried to make X illegal, it would be unenforceable.

The laws of preemption are a bit more complicated than that, but essentially, if a law enacted by a governing body lower on the chain is in direct contrast with a law passed by a body higher on the chain, it is preempted and should be struck down.

This was essentially the conclusion Judge Molloway reached regarding the Maui County ban. The Maui County law ran contrary to the PPA and, therefore was not enforceable. Worth noting, the Hawaii County ban was partially overturned by Judge Kurren for being preempted by federal law.

The Plant Protection Act

Briefly, let’s look at how Judge Mollway reached this conclusion. Sometimes federal law will contain a preemption clause when applicable. That is, the law itself will clearly state that it trumps any lower level laws. (That’s because if the law doesn’t include a preemption clause, there can sometimes be a question of whether the legal doctrine applies. Since I’m trying to make this simple, that other analysis isn’t so important.) It’s a nice way of Congress explicitly telling the judicial branch if preemption should apply.

As explained by JD Supra, the PPA contains a preemption clause and Judge Mollway clearly concluded that it applied to the county ordinance.

As reported by the KauaiEclectic, Judge Mollway’s opinion stated:

The statute prohibits the County from regulating the movement (including the release into the environment) of GE organisms in interstate commerce, if they are plant pests or noxious weeds. The Plant Protection Act includes the express statement that “all plant pests, noxious weeds, plants, plant products, articles capable of harboring plant pests or noxious weeds regulated under [the Plant Protection Act] are in or affect interstate commerce or foreign commerce.”

To determine whether preemption applies, this court must examine whether GE organisms can be considered either plant pests or noxious weeds. This court need not look beyond the language in the Ordinance itself in this regard. [T]he Ordinance inherently considers GE organisms to be “noxious weeds” and/or “plant pests.”

Pursuant to the PPA, if the Secretary of Agriculture has issued a regulation that prevents the dissemination of a pest or noxious weed, then any state or local law that also tries to regulate a plant in order to control a pest or noxious weed is preempted. See 7 U.S.C. § 7756(b). The Secretary of Agriculture has already issued regulations that govern genetically engineered crops. Remember, the federal government only de-regulates a new GMO plant for commercial use once its been reviewed by (at least) the USDA and EPA, and sometimes the FDA.  Therefore, because the Maui County law banned GMO plants, defining them as “noxious weeds” and “plant pests,” which are explicitly regulated by the PPA, Judge Mollway found the county law was preempted by those regulations.

Literally, the ordinance defeated itself.

Going Beyond Hawaii

So you might be thinking, so what? Hawaii certainly seems to have a more radical fringe voting block that allowed for the passage for 3 different cultivation bans in the state. Aside from Oregon, Hawaii is the craziest state out there.

But these judicial opinions, which determined the bans were preempted by federal legislation, could have precedential effect in other parts of the country. See, courts are supposed to look at how other courts have handled similar issues when deciding how to rule on a case. These two decisions should weigh on any federal court that hears a case like this, even if the court is in a different jurisdiction and, ultimately, decides the case differently. That means that if another county in a different state passes a similar law, a federal judge could rely on these opinions to make a decision.

Even more interesting, one of the individuals that helped sponsor the ballot initiative in Maui County has publicly indicated he will appeal this decision. That means a federal court of appeals could make a ruling on this case – perhaps the first one like it in the country. If the court affirmed the decision, that would result in a federal precedent holding that county-level GMO bans are not enforceable throughout that jurisdiction. Of course, the opposite could happen as well.

Either way, these decisions could have country-wide application. If other counties in the country attempt to pass similar bans, these decisions will probably influence how those bans are written. We’ll have to wait a little bit to see how far this goes, but it doesn’t take much imagination to think that there could be circuit splits, especially considering the Oregon cases, and this issue may be taken all the way to the Supreme Court.

Of course, that’s jumping the gun a little bit, but I find the possibility a bit thrilling and nerve wracking.

In the meantime, congratulations to Maui County, Hawaii for getting the GMO cultivation ban overturned! I love hearing this type of good news!

(If you would like to keep up on everything happening with agriculture in Hawaii, be sure to check out The Hawaii’s Farmer’s Daughter!)