On November 18, the US Court of Appeals for the Ninth Circuit held that federal and state law preempted three county laws in Hawaii that put restrictions on commercial farmers’ planting of genetically-engineered seeds. The WLF Legal Pulse blogged about the oral arguments this summer. The decisions, Atay v. County of Maui, Hawaii Papaya Industry Assoc. v. County of Hawaii, and Syngenta Seeds, Inc. v. County of Kauai, collectively represent a win in the fight against unscientific regulations on so-called Genetically Modified Organisms (GMO), and highlight the need for uniform, national rules.
The cases arose when the three Hawaii counties, Maui, Hawaii, and Kauai, passed anti-GMO ordinances. Those of Maui and Hawaii banned outright the growing of genetically modified crops, while Kauai’s ordinance created an extensive public-disclosure scheme for anyone using certain pesticides—the application of which is an essential part of modern commercial farming. Local farmers and seed suppliers challenged the three ordinances, alleging that they were preempted by federal and state law.
Both the federal government and the State of Hawaii have statutory schemes designed to protect consumers and the environment from dangerous plants. The federal Plant Protection Act (PPA) gives the Department of Agriculture, through the Animal and Plant Health Inspection Service (APHIS), the authority to protect against harms caused by “plant pests” and “noxious weeds.” The PPA prohibits the movement of plant pests without a permit and allows APHIS to prohibit or restrict the movement of plants in interstate commerce in order to prevent the spread of plant pests and noxious weeds. It also contains a preemption clause which expressly blocks any state or local law that would “regulate the movement in interstate commerce of any … plant, … plant pest, noxious weed, or plant product” if APHIS has restricted its dissemination. Hawaiian state statutes comprehensively regulate plant pests and pesticide use on the islands.
The Ninth Circuit found that the three county ordinances were preempted—Maui’s and Hawaii’s were preempted by both the PPA and state laws, Kauai’s only by state law. The court applied the PPA’s test for express federal preemption. First, the ordinances clearly attempted to regulate “movement in interstate commerce,” as the crops grown in Hawaii are sold internationally. Second, the Maui and Hawaii ordinances were intended to regulate plant pests or noxious weeds because they ban almost all planting and testing of GMOs, including those designated by APHIS as plant pests and noxious weeds. Third, the court held that the Maui and Hawaii ordinances clearly attempted to regulate plants designated by APHIS as pests or weeds—nearly every GMO is created with the APHIS-regulated pest Agrobacterium and a plant is considered a pest if it contains or is made with another plant pest. Therefore, the court held that the PPA expressly preempted the Maui and Hawaii ordinances.
Further, the court held that the Hawaiian state laws regulating plant pests and pesticides impliedly preempted the three ordinances because state laws covered the same subject matter as the three ordinances (plant pests and pesticides), created a comprehensive regulatory scheme (the laws’ breadth left very little room for additional regulation), and were created with the clear intent to be uniform and exclusive (the Hawaiian laws themselves clearly anticipate being the sole non-federal authority). Therefore, all the elements for “field preemption” under the Hawaii state law were met.
Federal and state legislators understood the negative impact a proliferation of conflicting local laws could have on agricultural innovation, and they drafted the pest and crop statutes with regulatory uniformity as a primary goal. The Ninth Circuit on far too many occasions has ignored or reasoned around such legislative clarity in its rulings on controversial subjects. That this particular three-judge panel properly applied preemption principles makes the rulings all the more significant. That said, it’s important to note that the ordinances at issue were very broadly drafted with an almost conscious disdain for the relevant state and federal laws. Anti-GMO activists may have lost this battle, but they are no doubt already busy considering new wording for local ordinances and other ways to get around federal and state preemption to advance their agenda.
Also published by Forbes.com on WLF’s contributor page.