Ninth Circuit Says Hawaii Counties Can't Regulate GM Crops

December 1, 2016 | Kristine A. Tidgren

In a case study of the balance of governmental powers, the United States Court of Appeals for the Ninth Circuit ruled this month that local ordinances passed by three Hawaii Counties to ban the cultivation of GM (genetically modified) plants were preempted by state and federal law.

The cases have been around for almost as long as the ordinances. In 2013 and 2014 the Counties of Kauai, Hawaii, and Maui enacted ordinances to stop the growing of GE plants within their jurisdictions. The counties are popular destinations for companies developing new GM seeds because of their year-round growing conditions.

The Ordinances noted the concern of the public, as demonstrated by this language from the Maui ordinance, “The citizens of Maui County have serious concerns as to whether GE Operations and Practices and associated use and testing of Pesticides, occurring in Maui County are causing irreparable harm to the people, Environment, and Public Trust Resources.”

Growers challenging the ordinances claimed that they were preempted both by state and federal laws designed to regulate the growing of harmful plants. The United States District Court for the District of Hawaii agreed, and the Ninth Circuit on November 18, 2016, affirmed.

Specifically, the Court ruled that the Maui Ordinance was expressly (but not impliedly) preempted by the Plant Protection Act, 7 U.S.C. § 7756(b). The federal law, the Court determined, prevented state and local governments from attempting to regulate the dissemination of “plant pests” in interstate commerce. The Maui ordinance sought to do just that. The court also found that with respect to some commercialized plants not regulated by the federal law, Hawaii state law governed, thus preempting the local ordinances. The Court found that Hawaii had enacted a "comprehensive" state statutory scheme regulating the use of pesticides (which was the issue in the Kauai County case) and that Hawaii regulates the importation, transportation, sale, control, and eradication of potentially harmful plants not regulated by federal law. The local laws were impliedly preempted by these laws.

What does this case mean for the rest of the country? It appears that local regulation will be not be a successful approach for those seeking to regulate the growing of GE crops. And restrictive state legislation is likely be preempted as well.

We'll keep you posted.

The cases were Atay v. County of Maui, No. 15-16466 (9th Cir. Nov. 18, 2016), Robert Ito Farm, Inc. v. County of Maui, No. 15-15246 (9th Cir. Nov. 18, 2016), and Syngenta Seeds v. County of Kauai, No. 14-16833 (9th Cir. Nov. 18, 2016). Hawaii Floriculture &  Nursery Ass’n v. County of Hawaii, No. 14-17538 (9th Cir. Nov. 18, 2016) was an unpublished opinion.