By Sophie Cocke
November 19, 2016
Biotech companies operating in Hawaii scored a major victory Friday when a federal appeals court threw out ordinances on Kauai, Hawaii island and Maui that banned or restricted the cultivation of genetically modified crops and sought greater regulation over pesticides.
Agricultural giants, such as Syngenta and Monsanto, as well as local farming groups had joined in lawsuits suing the counties over the laws, which were the fruition of a growing and fractious anti-GMO movement across the islands.
The rulings by three judges from the 9th U.S. Circuit Court of Appeals reaffirmed that federal and state laws pre-empt the counties’ authority to regulate the farming and testing of genetically modified organisms, commonly referred to as GMOs, and related pesticide use.
The Hawaii Crop Improvement Association, which includes Monsanto, Syngenta, DuPont Pioneer, Dow AgroSciences and Beck’s Hybrids, cheered the ruling.
The association “welcomes the protection that this decision provides Hawaii’s hard-working farmers and growers for standing up for science and for supporting continued innovation in agriculture,” according to a statement by the trade group. “In Hawaii, modern agriculture is thriving, contributing to the livelihood of farmers, the health of our environment, and the strength of our economy.”
HCIA added that the ruling “clears up potential confusion over who has jurisdiction in regulating agricultural operations, leaving that responsibility with the appropriate government agencies.”
The counties, who were joined by environmental groups and GMO opponents, had asked the 9th Circuit to overturn lower court decisions and allow the county laws to stand. The panel of appellate judges heard oral arguments in June.
In 2013 the Kauai County Council passed a law requiring large agricultural companies to divulge information about pesticide use and abide by setback rules for spraying pesticides. Commercial farmers were also required to report to the county on any GMO crops they were growing.
Anyone violating the law could face stiff penalties and even jail time.
Shortly thereafter Hawaii island implemented a law prohibiting biotech companies from operating on the island and banning farmers from growing any new genetically altered crops. The law exempted the island’s GMO papaya industry.
In 2014 Maui County voters approved a ballot initiative that banned testing and growing genetically altered crops until an environmental and public health study was conducted that showed the agricultural practices were safe. Biotech companies operating in Maui County estimated at the time 650 jobs could be lost if the moratorium went into effect.
Following Friday’s ruling, Robert Stephenson, president of the Molokai Chamber of Commerce, said the Maui County law would have been devastating to Molokai’s economy, causing the unemployment rate to soar to over 20 percent.
When biotech companies sued the counties over the laws, an array of environmental law firms, food safety activists and anti-GMO groups rose to defend the counties, either by providing legal representation or becoming parties to the cases, including Honolulu’s Earthjustice, the Center for Food Safety, Pesticide Action Network North America, SHAKA and Surfrider Foundation.
Earthjustice attorney Paul Achitoff and George Kimbrell, a senior attorney for the Center for Food Safety, said it was not clear whether the parties would continue pursuing the cases. They outlined two options: The parties could either ask for a new hearing before the 9th Circuit with an expanded panel of judges or appeal the decision to the U.S. Supreme Court.
What does seem clear is that the fight over GMOs in Hawaii isn’t over. Environmental and community groups concerned about the health and environmental impacts of the crops will likely shift their focus to the state level.
“Clearly, we are disappointed that in Hawaii right now these ordinances are dead,” said Achitoff. “There is no question we preferred a different outcome.”
But on a positive note, Achitoff said the court ruling clarified the state does have the power to regulate commercial GMO crops and pesticides, or afford such power to the counties if it so chooses.
“The takeaway for me is that all along the argument from the industry is that this is squarely and solely in the bailiwick of the (state) Department of Agriculture, and that is what the court decided,” said Achitoff. “So my position at this point is, OK, that is the decision whether we like it or not, so DOA, so Gov. (David) Ige, what are you going to do?”
Achitoff said that supporters of the county ordinances will likely pressure the state Legislature in the coming year to increase regulations of GMO crops and pesticides.
The 9th Circuit Court ruled that states have jurisdiction over the cultivation of commercial GMO crops approved for sale by federal agencies. However, the court said only the U.S. Department of Agriculture has the authority to regulate experimental crops and field trials.
Kimbrell said he was most troubled by the court giving the feds sole authority over experimental crops.
“The most important thing for us is that we will continue to stand with the people of Hawaii against the chemical companies,” said Kimbrell.
Meanwhile the counties themselves had various responses to the ruling Friday.
Maui County spokesman Rod Antone said, “The 9th Circuit has spoken, but the U.S. Supreme Court is still an option, so I think saying anything right now would be premature.”
Kauai Mayor Bernard Carvalho, who vetoed the County Council bill but was overridden, said that the ruling brought finality to the court case.
“Today’s ruling brings an end to a very divisive issue both on Kauai and throughout the entire state,” he said in a news release.
Hawaii County officials did not comment on the ruling.