WASHINGTON, Nov. 18, 2016 - Hawaiian counties that sought to ban genetically engineered crops or impose conditions on the use of pesticides have lost in the Ninth Circuit Court of Appeals, which ruled that state and federal laws pre-empt local ordinances.

Hawaii and Maui counties passed laws prohibiting open-air testing and cultivation of GE organisms in order to protect organic and non-GE farmers from cross-pollination and pesticide drift. Kauai’s ordinance largely targeted pesticide use but also required registration of GE crops and disclosure of their locations.

Seed and pesticide companies fought back against the ordinances, passed in 2013 and 2014, and won favorable decisions from judges in federal district court last year. Among the companies and groups that sued to block implementation are Monsanto, Syngenta, Dow AgroSciences, Agrigenetics and the Hawaii Farm Bureau Federation.

Hawaii is extremely important for seed companies, which take advantage of the multiple growing seasons to test their biotech products and produce seed for farmers.

A Monsanto spokesperson used the release of the opinions to affirm the company’s commitment to ongoing dialogue with our neighbors.”

“We’ve heard the concerns some people have about (genetically modified organisms) and today’s farming practices,” the spokesperson said. “We understand the responsibility we have to farm sustainably and to work collaboratively, and we welcome the opportunity to continue having conversations with members of the community.” Monsanto has about 1,000 employees in Maui, Molokai and Oahu.

The court issued three separate opinions, but the legal analysis in the Maui decision also applies to the Hawaii County ordinance. Both laws targeted GE crops using similar language.

As the court explained in Atay v. County of Maui, “The stated purposes of Maui’s ordinance are to protect organic and non-GE farmers and the county’s environment from transgenic contamination and pesticides, preserve the right of Maui County residents to reject GE agriculture, and protect the county’s vulnerable ecosystems and indigenous cultural heritage.”

But under the preemption clause of the federal Plant Protection Act (PPA), the court said that “state and local governments may not supplement the strict controls that apply to federally regulated plant pests” without the approval of the Animal and Plant Health Inspection Service.

The court said the PPA “expressly” preempts the Maui and Hawaii county ordinances to the extent that they seek to ban GE plants that APHIS regulates as plant pests. The court added, however, that federal law does not preempt state regulation of federally deregulated, commercialized GE crops.

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But restrictions on those crops are preempted by Hawaii’s own comprehensive set of laws regulating potentially harmful plants, the court said.

The state laws give the state’s Department of Agriculture “broad rulemaking authority … to enact restrictions specific to GE crops,” if the department were to conclude that those crops “are potentially harmful to agriculture or the environment,” the court said.

That means that opponents of GE agriculture in Hawaii will have to shift their focus to the state legislature if they want to continue the battle against GE crops in Hawaii.

Kauai County approved an ordinance in 2014 requiring farm operators or applicators who use restricted-use pesticides (RUP’s) to notify neighbors before they apply. The ordinance also included buffer zones and “Good Neighbor” provisions requiring ag operations to send weekly notices to beekeepers and property owners whose land is within 1,500 feet of the property where the pesticide is applied.

The Hawaii Pesticides Law preempts the county’s attempt at regulation, the court said, noting that it “establishes notification and warning requirements in connection with the application of pesticides.”

“Hawaii law addresses the same subject matter as Ordinance 960’s pesticide notification provisions: warnings regarding the application of RUPs,” the court said.

Responding to arguments from defenders of the ordinance that the state’s pesticide law is not comprehensive, the court said, “The Hawaii Pesticides Law and its implementing rules address the entire life cycle of pesticides, including research/experimentation, transportation, storage, sale, use, and disposal.”

Left unanswered by the decisions is the question of their impact on the more than 100 similar statutes, regulations and ordinances passed around the country.


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