Hawaii's Last Anti-GMO Law Overturned

A federal judge has overturned the last anti-GMO law in Hawaii, firmly establishing state and federal preemption rights throughout the Islands.

In striking down a voter-approved moratorium on growing GM crops yesterday, Federal Judge Susan Oki Mollway determined the Maui ban “is expressly preempted by federal law.” Her ruling goes further than two court decisions that last year invalidated the Kauai and Big Island anti-GMO laws.

U.S. Magistrate Judge Barry Kurren did not address the federal preemption question last August when he overturned Kauai Ordinance 960, which attempted to regulate pesticides and GM crops. Kurren later rejected Hawaii County Ordinance 13-121, which banned all but existing GMO crops, ruling it was partially pre-empted by federal law.

In both cases, Kurren found the Hawaii Legislature clearly intended for state agencies, such as the Departments of Health and Agriculture, to oversee such matters. Mollway agreed, finding that state “statutes and regulations create a comprehensive scheme addressing the same subject matter as the Maui Ordinance.... and state law does not speak to county involvement in rulemaking, oversight, or enforcement relating to that scheme.'”

Mollway also smacked down those who were trying to use the county ordinance process to address health and environmental issues associated with GM crop cultivation:

Notwithstanding the concern that many people have expressed on both sides of these issues, and the visible (and sometimes audible) passion of members of the substantial audiences that have attended hearings in this case, those issues are not before this court on the present motions, and those who want those issues addressed must seek means other than the present order to accomplish that.

In addressing the question of federal preemption, Mollway specifically found that “Maui’s ban of GE organisms funs afoul of the [federal] Plant Protection Act and its regulations.” She wrote:

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.”

Mollway cited Kurren's ruling on the Hawaii County ordinance, which found that “imposing restrictions on open air cultivation, propagation, development, and testing of GE crops and plants was preempted” by the same statute she referenced in striking down the Maui County moratorium.

Mollway's order points to possible trouble ahead for supporters of the Hawaii and Kauai county laws, who are appealing Kurren's rulings to the Ninth Circuit Court. Mollway wrote:

With respect to implied conflict preemption, the Ninth Circuit has clarified that state legislation is preempted when it is impossible to comply with both state and federal requirements, or when state law stands as an obstacle to the accomplishment and execution of the full purpose and objectives of Congress. Even if preemption were not express, the Ordinance would still be preempted because it frustrates the purpose of the Plant Protection Act.

Mollway also found that the Maui moratorium exceeds authority delegated to the county by its Charter. While the moratorium imposed fines of $10,000 for a first violation, $25,000 for a second violation, and $50,000 for any subsequent violation, the Charter does not allow civil penalties to “exceed the amount of $1,000 or one (1) year’s imprisonment, or both.” The penalty provisions in the Ordinance clearly exceed the authorized amount, and have not been authorized by the Maui County Council as stated in the Maui County Charter.

Despite the moratorium's severability clause, Mollway found “this court cannot simply sever the civil fine provisions without engaging in a legislative function... and instead determines that the civil fine provisions are unenforceable.”

And since the court found the ordinance is unenforceable, it denied SHAKA's motion seeking a cross-claim against Maui County forcing it to certify the election results and implement the ordinance.

The order did not address whether the ordinance violated the commerce clause. The parties that challenged the moratorium — Robert Ito Farm, Inc., Hawaii Farm Bureau Federation, Maui County, Molokai Chamber of Commerce, Monsanto Company, Agrigenetics Inc., Concerned Citizens of Molokai and Maui, Friendly Isle Auto Parts & Supplies, Inc., New Horizon Enterprises, Inc. and Hikiola Cooperative — have until July 10 to decide how to proceed on that claim.

SHAKA, the Maui group that got the moratorium on the Nov. 4, 2014 ballot, has vowed to appeal and is asking the seed companies to follow the law, even though it was invalidated by the court.

In the final paragraph of her order, Mollway again acknowledged the public controversy surrounding the GM crop debate:

The court stresses again, so that no lay party has any misapprehension on this point, that it is ruling purely on legal grounds. No portion of this ruling says anything about whether GE organisms are good or bad or about whether the court thinks the substance of the Ordinance would be beneficial to the County.