Back in September, I wrote about a Kauai County ordinance banning the production of GMO crops invalidated by the federal district court in Hawaii. Recently a Hawaii County ordinance banning GMO production met a similar fate in Hawai’i Floriculture & Nursery Ass’n v. County of Hawaii, Civ. No. 14-00267, 2014 WL 6685817 (D. Haw. Nov. 26, 2014). Similar to the Kauai County ordinance, the Hawaii County ordinance was preempted under state law and portions of federal law.
Before we look at the case, you may be wondering: “Paul, why are all these challenges coming out of Hawaii?” Well, the answer is climate. Because of Hawaii’s climate, seed companies such as Monsanto and Dow have test plots and develop many varieties in Hawaii. Seed varieties used around the world are first tested in Hawaii. This testing has recently run into opposition from those concerned about cross pollination of local crops and increased use of pesticides from the testing. For more information on this rising opposition, see http://www.capitalpress.com/Research/20140918/gmos-face-the-test-in-hawaii.
The Hawaii County ordinance became effective December 5, 2013 and the plaintiffs filed the lawsuit to invalidate the ordinance in June 2014. Hawaii County’s exempted those producers who had been producing GMO crops from specific locations where GMO crops had been grown prior to December 5, 2013. To get this exemption, the producer had to register with the county and pay a $100 annual fee per location. The ordinance here was only a partial ban and not a full ban as was the case in Kauai County.
So why was the ordinance invalidated? The court here relied on the reasoning from the Kauai County decision (both cases were before the same judge). The court found that the county ordinance was preempted by various state laws. Hawaii law gave the Hawaii Department of Agriculture (HDA) exclusive domain to regulate areas “concerning the introduction, propagation, inspection, and destruction, and control of plants” (at *5). For example, HDA had authority to regulate the introduction of plants into the state and keep out seeds potentially harmful to the state. HDA has the authority to classify certain plants as noxious weeds which have to be controlled or eradicated. This demonstrated to the court that the state had exclusive control over the field to regulate it and left no room for county regulations.
The court also agreed that the ordinance was partially preempted by federal law. Federal law (the Plant Protection Act) limited the ability of counties and cities to regulate the movement of any plant in interstate commerce to prevent the introduction or dissemination of a plant pest or noxious weed. Hawaii County's partial ban was intended to prevent the dissemination of noxious weed and was preempted under federal law.
So why should you care about a court decision in Hawaii? The year 2014 saw a number of counties around the country passing similar bans on GMO crops, including counties in Oregon, California, and more counties in Hawaii. One county ban in Oregon is currently being challenged by a group of local farmers. The most recent Hawaiian county ordinance (this one in Maui County) to pass in November is also being challenged in federal court.
You may see that list and say, “Paul that is all on the West Coast, so why do we need to worry?” Well because there’s nothing to say a similar ban could not be passed by a county in Maryland, Delaware, or Virginia. As we discussed in the GMO last post, Maryland and almost all states have similar laws found to preempt the Hawaiian county ordinances. This does not guarantee a similar result in Maryland, Delaware, or Virginia, but it does give us thoughts on the legal arguments that will be raised against similar bans around the country.
One easy way to stop this is for a state legislature to come in and expressly prohibit counties from passing ordinances banning GMO crop production. This settles the issues and clearly defines that the county has no role in regulating GMO crops. Nothing also says a state could not change its laws to allow county oversight of GMO crop production. One potential problem with this is it creates a statewide hodgepodge of rules regarding GMOs. If you farm in one county allowing GMOs and in another county which has banned GMO production, that will impact your farming operation. The bans would still potentially be preempted under the federal Plant Protection Act which limits counties and cities from regulating the movement of any plant.
In the end, nothing at this time is entirely clear on how a county bans GMO production except in Hawaii. The rest of us will have to wait and see how various state courts will settle this issue unless a state legislature wants to jump into the mix and expressly tell counties and cities these types of ordinances will not work.
Editors’ note: For those curious, this post is 100% so I could use pictures from both versions of the TV show Hawaii Five-0.