The 9th Circuit Court of Appeals today issued three opinions with national implications when it upheld lower court rulings that struck down anti-GMO measures on Kauai, Hawaii Island and Maui.
In a huge victory for the state's seed industry, the panel affirmed that two Hawaii District Court judges acted correctly when they concluded all three county bills were pre-empted by state law, and the Hawaii Island bill and Maui citizen's initiative were pre-empted by federal law as well.
The decision guts a three-year, polarizing effort by the Center for Food Safety and Earthjustice to use Hawaii to establish a national legal precedent for controlling GMO crop cultivation under the guise of “home rule.”
Instead, the opinions showed that recently defeated Kauai Councilman Gary Hooser, who worked closely with the two groups, erred from the get-go in introducing Bill 2491, which created a domino effect of similarly flawed anti-GMO measures on the Big Island and then Maui.
The three bills cost the counties hundreds of thousands of dollar in legal fees and created a bitterly contentious political climate that divided rural communities across the state. The Kauai and Hawaii Island bills were passed by the county councils there, while the Maui law was approved by voter initiative.
The panel affirmed that the Hawaii Pesticides Law, which regulates pesticides and genetically engineered plants, preempted the pesticide provisions in Kauai County’s Bill 2491/Ordinance 960.
The panel found that Ordinance 960’s pesticide provisions and the Hawaii Pesticides Law addressed the same subject matter. It also affirmed that the state’s scheme for the regulation of pesticides was comprehensive. And finally, it held that the Hawaii Legislature clearly intended for the state’s regulation of pesticides to be uniform and exclusive.
The panel also concluded that Ordinance 960’s pesticide provisions were impliedly preempted by Hawaii law and beyond the County’s power. The panel held that certification to the Hawaii Supreme Court was unnecessary because the because the State’s test for implied state preemption was well-defined.
It used similar reasoning in affirming the decision that overturned the Big Island ban on testing and cultivating GMO crops, while also finding that law was expressly pre-empted by federal law.
The Maui initiative, which called for a moratorium on cultivation of GMO crops until they were "proven safe," was also tossed on the basis of being pre-empted by state and federal law.
The anti-GMO movement had been attempting to end-run federal law, which is the hardest to change, by pushing for local legislation to regulate the crops. But with the 9th Circuit opinions, that effort has been seriously derailed.