Although attempts to ban or impose restrictions on genetically-modified organisms (GMO)have been made in three Hawaii counties (Hawaii, Maui and Kauai), all ordinances that passed in these counties have been struck down in the federal district court, and Friday that court’s decision was upheld on appeal in the U.S. Court of Appeals for the Ninth Circuit. 

The 9th U.S. Circuit Court of Appeals backed lower court decisions knocking down county-level GMO bans in Kauai, Maui and Hawaii, finding that the state's pesticide law did not allow for the local restrictions. The Court ruled that the U.S. Department of Agriculture alone has the authority to regulate field trials and experimental GE crops; neither states nor local governments can ban or approve. Hawaii is commonly used for experimental plots by the major seed companies because of the year-long growing season.

Agrigenetics, Inc. (a company affiliated with Dow AgroSciences LLC), DuPont Pioneer and Syngenta jointly filed a complaint in U.S. District Court in Honolulu, Hawaii, against the County of Kaua‘i for violating the United States and Hawaii Constitutions, multiple federal and state laws and the Kaua‘i County Charter in the enactment of Bill 2491. On February 7, an amended complaint was filed, adding BASF to the complaint.

In November 2014, a voter initiative passed in Maui to ban all GMO crops, current and future. And, on the Big Island of Hawaii, the county council banned any new GMO crops from being planted, with the exception of current papaya and floral operations. However, farmers would find themselves breaking the law if they plant any more acres than they currently have. Both ordinances were invalidated in federal court, and these decisions, including the Kauai decision, were under consideration in the U.S. Court of Appeals for the Ninth Circuit.

“We welcome the protection that this decision provides Hawaii’s hard-working farmers and growers (including our fellow plaintiffs), for standing up for science and for supporting continued innovation in agriculture.  Although we continue to review and consider the decision, we believe that the court of appeals was correct in its conclusion that Hawaii County lacks the legal authority to regulate in this area,” said Karen Batra, spokesperson for the Biotechnology Industry Organization (BIO).

Batra added, “Agricultural biotechnology has contributed to modern farming solutions that have enabled farmers to grow more food on less land with fewer pesticide applications, less water and reduced on-farm fuel use.”

Supporters of the ban saw victory in the ruling as well. Of significance to state and local communities throughout the United States, the Ninth Circuit ruled that federal law—specifically, the Plant Protection Act—does not prohibit states and counties from passing local laws to regulate and ban commercially-grown GE crops.

They explained that the Court ruled that under Hawai‘i law, counties and municipalities do not have the authority to regulate GE crops (as some in other states do), and that Hawai‘i state law places such authority in the hands of the State alone.

“We believe that when Hawai‘i’s state courts have an opportunity, they will reject the Ninth Circuit’s conclusion on this point and allow Hawai‘i’s people to protect themselves, since the State certainly hasn’t protected them,” said Earthjustice attorney Paul Achitoff.

“We are extremely disappointed with the ruling that some experimental GE field trials can only be regulated by USDA, and are considering all legal options. Most importantly, we continue to stand and fight with the people of Hawai?i against these chemical companies,” said George Kimbrell, senior attorney for the Center for Food Safety.

Attorneys with Center for Food Safety and Earthjustice, who represented local residents, conservation groups, and Hawai‘i County in the proceedings, said they are “analyzing the full scope of the court’s decisions and will be considering options that would protect Hawai‘i’s people, farms and the environment.”