Organic Broadcaster

Lawyer explains lessons learned from Hawaii’s GMO controversy

By Sarah E.  Korte, Foley & Mansfield, PLLP

Hawaii—that dream vacation destination—has been a battleground in the debate over the role of genetically engineered (GE) plants and pesticides in agriculture. The state’s favorable climate and year-round growing season have made it a go-to site for the testing and development of GE plants. Hawaii’s struggle to legally control GE crops is a good lesson for those people working at a local level to control GE crops and related pesticides.

Hawaii’s Situation
Under Hawaii law, the state, the Hawaii Department of Agriculture, and the Hawaii Board of Agriculture work closely with the USDA to regulate GE plants and pesticides. However, Hawaiians felt this system was not doing enough to protect them or the native plant life. They had become concerned about the possible effects of the pesticides used on these GE crops. They had noticed an increase in birth defects1 on the islands. They were also concerned about possible genetic contamination of the natural flora in a delicate ecosystem the USDA has described as containing “more threatened and endangered species per square mile than any other place on earth.”2

In 2013 and 2014, Hawaiians took matters into their own hands, and passed county ordinances banning and regulating GE plants and pesticides. Hawaii only consists of five counties; three counties passed ordinances: Kauai, Hawaii, and Maui.

After years of litigation, the Ninth Circuit Court of Appeals ruled last November in three separate decisions that the three ordinances were invalid under federal and state law because of the legal doctrine of “preemption.”

Preemption Doctrine
Other Americans frustrated with the current regulatory system for GE plants and pesticides have also passed county ordinances to try to regulate them locally. Three counties in Oregon and one in California passed such ordinances. The legality of each ordinance was challenged by the preemption doctrine; some were defeated because of it. Future county ordinances will run into the same obstacle. Therefore, it is important to understand the preemption doctrine.

At the federal law level, “preemption” comes straight out of the Constitution’s Supremacy Clause, which declares, “This Constitution . . . shall be the supreme Law of the Land…”3 At both the federal and state level, there are two basic ways preemption occurs, (1) express preemption, and (2) implied preemption (aka field preemption).

Because of express preemption, if a state law conflicts with a federal law, the federal law wins and the state law is invalid. The same goes for state laws versus county ordinances—state law prevails over a conflicting ordinance. For example, if a state has a law such as, “You must drive on the right side of the road,” a county cannot have a law that says, “You must drive on the left side of the road.” Obviously, the county law conflicts with the state law. Under express preemption, the county ordinance loses and is invalid.

Under implied preemption, a state law is preempted if “federal law so thoroughly occupies a legislative field that it is unreasonable to infer that Congress intended for supplement state or local regulation.”4 To simplify, when federal laws create a regulatory structure for an area that leaves no role for state laws, any state law that tries to legislate in that area is impliedly preempted.

The same basic framework for implied preemption applies to the preemption of county ordinances by state laws. Obviously, the details can vary from state to state. Under Hawaii’s implied preemption rule, a county ordinance is impliedly preempted by state law if (1) it addresses the same subject as state law, (2) that subject is covered by a comprehensive and uniform state statutory scheme, and (3) the state legislature intended for the state’s scheme to be uniform and exclusive.

Challenged Ordinances
On Nov. 16, 2013, Kauai County passed Ordinance 960 into law. Ordinance 960 imposed pre- and post-pesticide application notification requirements, annual public disclosure of the growing of GMOs, pesticide buffer zones, and required Kauai County to complete a study to address any environmental and public health concerns posed by large-scale users of pesticides and GE crops.

Shortly afterward, five different companies that supply GE seeds and grow a variety of GE plants on Kauai County sued the county in Hawaii federal district court.

On Aug. 25, 2014, the district court ruled that Ordinance 960 was preempted by Hawaii state law. Kauai County and its supporters appealed the decision against them to the Ninth Circuit Court of Appeals.

Right on the heels of Kauai County, Hawaii County passed Ordinance 13-121 into law. This ordinance prohibited people from “knowingly” engaging in the “open air cultivation, propagation, development, or testing of genetically engineered crops or plants.” This broad ban was narrowed by some exemptions, including for those growing GE papaya and those growing GE plants prior to the enactment of the ordinance.

On June 9, 2014, several entities and individuals sued Hawaii County in Hawaii federal district court. The court ruled for the plaintiffs, finding that Ordinance 13-121 was fully preempted by Hawaii state law and partially preempted by a federal law, the Plant Protection Act. The defendants appealed to the Ninth Circuit Court of Appeals.

About a year after Kauai and Hawaii counties passed their ordinances, the people of Maui County passed the Maui GMO ordinance. Eight days later, plaintiffs who supported the ordinance filed a lawsuit (the Atay lawsuit) in Hawaii state court asking the court to determine the legality of the ordinance. The next day, plaintiffs who opposed the ordinance, including Robert Ito Farm, Inc., the Hawaii Farm Bureau Federation, and the Monsanto Company, sued Maui County in Hawaii federal district court (the Robert Ito Farm lawsuit). The Hawaii federal district court eventually ruled that the Maui GMO Ordinance was invalid and unenforceable because it was preempted by federal and state law and exceeded the county’s authority. This decision was also appealed to the Ninth Circuit Court of Appeals.

Ruling Explanations
The Ninth Circuit Court of Appeals upheld the district court’s decision in each case, affirming that the three county ordinances were invalid.

Because the Maui Ordinance made it unlawful for people to knowingly cultivate or test GE plants within the county, the court held that it was expressly preempted in part by the federal Plant Protection Act. Under the Plant Protection Act, the Animal and Plant Health Inspection Service (APHIS), a USDA agency, is in charge of regulating plant pests. Most GE plants are regulated by APHIS as plant pests “because nearly all GE plants are created using Agrobacterium, which is a listed plant pest.”5 This means that under the preemption doctrine, states and local governments cannot regulate GE plants that APHIS is regulating as plant pests. In sum, the court held that the provisions of the Maui GMO Ordinance that banned GE plants that APHIS was regulating as plant pests, were expressly preempted by the Plant Protection Act.

The court went on to decide that the Maui GMO Ordinance was not preempted by the Plant Protection Act to the extent that it regulated any GE plants that APHIS had deregulated and was no longer regulating. In fact, the court stated that states and local governments could regulate any GE plants that were deregulated by APHIS without running afoul of the Plant Protection Act.

However, this did not mean that the Ninth Circuit saved portions of the Maui GMO Ordinance. The court held that those parts of the ordinance that were not expressly preempted by the Plant Protection Act were impliedly preempted by Hawaii state law.

Hawaii has a very thorough and comprehensive regime for regulating “restricted” or “noxious” plants that can impact “the agricultural, horticultural, aquacultural, or livestock industry of the State . . .’”6 The court determined that Hawaii’s legislature had intended the state’s regulation of potentially harmful plant pests to be free of supplemental regulatory rules from Hawaii’s counties. The Maui GMO Ordinance tried to regulate GE plants as potentially harmful and noxious plant pests, thus butting directly into the territory of the Hawaii state regulatory system. Therefore, the Maui GMO Ordinance was impliedly preempted.

Kaui County’s Ordinance 960 regulated pesticides by requiring pesticide application notifications and buffer zones, which the Ninth Circuit ruled was preempted by the Hawaii Pesticides Law. This law gives the Hawaii State Board of Agriculture the power to regulate pesticides and gives the Hawaii Department of Agriculture the power to enact rules to carry out the Hawaii Pesticides Law. To put it simply, the court determined that the pesticide regulation “field of law” was already comprehensively occupied by the laws of the state of Hawaii, and thus the county ordinance was preempted and invalid.

Future Ordinances
If a county ordinance attempts to regulate or ban GE crops or pesticides in any way that is already controlled by a state law or a federal statute, the ordinance is likely to be declared invalid by a court. People must either pass county ordinances that fill some gap in state law or federal statutes regulating GE crops and pesticides, or they must change the state and federal statutes.

Preemption serves a very important and necessary role. It prevents our country from developing a hodgepodge of different laws across counties or across states. Just imagine how difficult it would be for farmers to comply with different county ordinances banning and regulating different field applications and different crops.

These county ordinances were not struck down because “Big Ag” brought “Big Money” to the table to buy a legal victory; they were struck down because of a traditional and valuable structure of law. Preemption is a powerful and common-sense way to organize our laws. Understanding the preemption doctrine provides a context for why these Hawaii ordinances were defeated that goes deeper than the debate over GMOs and pesticides.

A former dairy farmer, Sarah E. Korte practices civil litigation in Minneapolis at Foley & Mansfield, PLLP.

Footnotes

1 Christopher Pala, Pesticides in Paradise: Hawaii’s Spike in Birth Defects Puts Focus on GM Crops, (Aug. 23, 2015), https://www.theguardian.com/us-news/2015/aug/23/hawaii-birth-defects-pesticides-gmo.
2 USDA, BRS Fact Sheet: USDA Regulation of Biotechnology Field Tests in Hawaii, (Feb. 2006), http://www.co.maui.hi.us/DocumentCenter/View/94680.
3 U.S. Const., Art. VI, cl. 2.
4 Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992).
5 Id. at 27 (citing 7 C.F.R. § 340.2(a)).
6 Id. at 38 (citing Haw. Rev. Stat. § 152-1).

 

From the May | June 2017 Issue

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