On August 25, the federal district court for Hawaii vacated Kauai County’s Ordinance 960, which imposed mandatory disclosure obligations regarding the use of certain pesticides and the cultivation of genetically modified crops (“GMOs”).  The Court’s ruling is important because it is the first major decision to address a county’s ability to regulate GMO cultivation and pesticide use.

Last year, Kauai County passed a law requiring all commercial agricultural entities to make certain disclosures regarding the growing of GMOs and the use of restricted use pesticides.  The law also imposed buffer zones prohibiting the use of certain pesticides within varying distances of neighboring properties.  A group of agricultural companies filed suit against the law claiming that it was preempted by both state and federal law.  The court vacated the law finding that Hawaii state law preempted the County Ordinance.  Syngenta Seeds, Inc. v. Cnty. of Kauai, No. 14-00014 (D. Haw. Aug. 25, 2014).  The court rejected the federal preemption argument.

The district court recognized that “the State of Hawaii has established a comprehensive framework for addressing the application of restricted use pesticides and the planting of GMO crops.”  Op. at 2.  Though the court determined that the County possessed authority to enact regulations that affect agriculture, it found that the challenged law exceeded such authority.

The court first addressed the pesticide provisions of Ordinance 960 by comparing them to the corresponding state law.  In Hawaii, a local law is preempted where it “legislates in an area already staked out by the legislature for exclusive and statewide statutory treatment.”  Id. at 15 (citing Richardson v. City & Cnty. of Honolulu, 868 P.2d 1193, 1207 (Haw. 1994)).  The court found that the Hawaii Pesticide Law (HRS §§ 149A-31 through 149A-37) evidenced the legislature’s intent to establish a statewide regulatory system because it empowers the Hawaii Department of Agriculture to enforce the law and promulgate regulations through a comprehensive legal framework that does not include participation of counties or local governments.  Id. at 19-20.  Because the state law addressed recordkeeping and reporting requirements as well as use restrictions, the court found that the County law impermissibly overlapped with the state law and was thereby preempted.

The court employed the same analysis in finding that the GMO provision of Ordinance 960 was preempted by state law.  Hawaii law designates the state Department of Agriculture as the agency  responsible for restricting the importation of plants and controlling and eradicating noxious weeds that can be injurious to agricultural, horticultural, aquacultural, or livestock industry.  Id. at 22 (citing HRS § 152-1).  The court found that the state law proscribed a manner for “identifying potentially harmful plants” and held that the County law attempted to do the same.  Id. at 23.  This state law also did not include the counties or local governments within the regulatory regime, and the court therefore found the County law to be preempted in this respect as well.

The court rejected plaintiffs’ federal preemption arguments, however.  It found that the Federal Insecticide Fungicide and Rodenticide Act (“FIFRA”) did not expressly preempt the law because FIFRA provides for state and local government regulation and FIFRA’s privacy provisions were not contradicted by the Kauai Ordinance.  Id. at 26-30.  The court also held that the Plant Protection Act (“PPA”) did not preempt the GMO provision of the county law because the Ordinance did not prevent the importing, growing, or exporting of any GMO crop.

The decision is important because it sets a precedent for an existing case and potential future cases challenging local anti-GMO laws.  The court’s opinion is likely a bellwether for the resolution of a similar suit before the same judge where a group of plaintiffs are challenging Hawaii County’s law that prohibits GMO cultivation.  See Hawaii Floriculture & Nursery Ass’n v. Cnty. of Hawaii, No. 14-cv-00267 (D. Haw. filed June 6, 2014).  A motion for summary judgment on the issues of state and federal preemption is currently pending before the court, with a hearing on the motion scheduled for October 23.  Given that the court has just found a similar law preempted by state law, the Hawaii County law may meet the same fate as the Kauai County law.  Additionally, because the Hawaii County law actually prohibits the cultivation of GMOs (with the exception of papaya), the court may determine that federal preemption also applies.

This decision may also impact future litigation against local laws that seek to ban the growing and cultivation of GMOs.  Certain counties in California (Mendocino, Marin), Oregon (Jackson, Josephine), and Washington State have GMO bans in place that could be subject to similar lawsuits.  If lawsuits against those local laws are filed, the district court’s decision here will likely have a significant influence in how those cases are presented and resolved.