A Hawaii federal court has ruled that a Maui ban on genetically modified organisms (GMOs) is preempted by the Plant Protection Act and therefore invalid. Robert Ito Farm, Inc. v. Cnty. of Maui, No. 14-0582 (D. Haw., order entered June 30, 2015). The decision begins with an introduction clarifying that the court recognizes the importance of the questions of whether GMOs pose risks, noting, “This order is not an attempt by this court to pass judgment on any benefit or detriment posted by [genetic engineering (GE)] activities or GMOs.”
The Maui prohibition on GMO cultivation or propagation passed in November 2014 and supporters of the initiative filed a lawsuit for a declaratory judgment shortly thereafter. Detractors then filed a lawsuit the following day seeking to invalidate the ban. After disposing with preliminary motions filed by a supporter organization, Shaka Movement, the court turned to the issue of preemption. The federal Plant Protection Act governs “noxious weeds” that can damage crops, the court found, and the GMO ban’s purpose is to prevent “transgenic contamination” and to protect the integrity of organic and non-GE markets. “The Ordinance seeks to regulate GE crops, such as genetically engineered papayas and bananas, to prevent those crops from ‘contaminating’ or damaging non-GE papaya and banana crops,” the court said. “In other words, the Ordinance inherently considers GE organisms to be ‘noxious weeds’ and/ or ‘plant pests’” as defined in the Plant Protection Act.
“Even if preemption were not express,” the court noted, “the Ordinance would still be preempted because it frustrates the purpose of the Plant Protection Act. The ban on GE organisms, some of which are plant pests, causes the Ordinance to run afoul of the Plant Protection Act’s purpose of setting a national standard governing the movement of plant pests and noxious weeds in interstate commerce based on sound science.”
The court then refused to certify the question of state law preemption to the Hawaii Supreme Court, finding that state law did preempt the ordinance. “In its Noxious Weed Rules, the Hawaii Department of Agriculture has established criteria for noxious weeds based on, among other things, plant reproduction, growth characteristics, detrimental effects, and distribution and spread,” the court said. “These statutes and regulations create a comprehensive scheme addressing the same subject matter as the Maui Ordinance. The statutes and regulations reflect the authority of state agencies over the introduction, propagation, inspection, destruction, and control of plants that may harm agriculture, the environment, or the public.”
Accordingly, the court held that the GMO ban exceeded Maui County’s authority to impose fines and granted summary judgment for the detractor plaintiffs, repeating again that “[n]o portion of this ruling says anything about whether GE organisms are good or bad or about whether the court thinks the substance of the Ordinance would be beneficial to the County.”