Judge rules against county GMO regulations

Mateusz Perkowski

Capital Press

A court ruling on genetically modified organism regulations in Hawaii's Kauai County may have implications for other litigation over biotech crops.

A federal judge has invalidated a Hawaiian county’s regulations for genetically modified organisms, but has affirmed that states can require growers to disclose information about GMO crops without running afoul of federal laws.

That finding provides some consolation for critics of biotech crops in what’s otherwise a defeat.

While the decision is certainly a victory for proponents of biotechnology, it also rejects some of their key legal arguments against Kauai County’s regulation of genetically engineered crops.

Significantly, the ruling held that requiring farmers to disclose the type and location of transgenic crops is not preempted by federal law.

“It seems to be not all bad news for the losers and not all good news for the winners,” said Daniel Cole, an environmental law and economics professor at Indiana University.

Last year, the Kauai County Council approved an ordinance that requires biotech farmers to submit an annual report to government agencies about the GMO crops they’re growing.

The ordinance also includes no-spray buffer zones and notification requirements for pesticides, among other measures.

Syngenta Seeds and other biotech proponents filed a lawsuit seeking to overturn the ordinance, which they claimed was barred by several state and federal laws and violated their due process rights.

U.S. Magistrate Judge Barry Kurren has agreed with the plaintiffs on a crucial point: the local ordinance is preempted by Hawaii state rules for pesticides, plant quarantines, seed quality and noxious weeds.

However, he ruled that the county’s regulations are not preempted by federal laws and regulations governing pesticides, biotechnology and plant protection.

Biotech proponents would have prevailed more resoundingly in the lawsuit if the ordinance was struck down on grounds of federal preemption, said Cole.

“If they won on federal preemption, that’s the best, because it’s so hard to change,” he said.

From the legal perspective, other federal courts could potentially be influenced by the ruling, Cole said.

The opinion indicates that a state can preempt its counties from requiring GMO disclosure, but the state itself can implement such a requirement without running afoul of federal law, he said.

The ruling could be relevant in other states if they pass similar GMO disclosure requirements, said Drew Kershen, an agricultural biotechnology law professor at the University of Oklahoma.

Many farmers are leery of such a possibility, he said. “The reason they’re worried about being pin-pointed is vandalism, because it’s happened.”

However, the opinion won’t directly bear on the legality of labeling foods containing GMOs, since questions of federal preemption are very fact-specific, said Kershen. “I think they’re going to be quite distinctive issues.”

In practical terms, the ruling also means that counties could still enact GMO and pesticide rules if Hawaii’s legislature makes clear that they’re not preempted by state law, said Cole.

It would be tough for GMO critics to convince state lawmakers to pass such a bill, but not nearly as difficult as getting the U.S. Congress to sign off on it, he said.

The Center for Food Safety, a non-profit that supported the ordinance, believes the judge made the right decision about the lack of federal preemption but is “extremely disappointed” that the Kauai regulations were overturned.

The group and other ordinance supporters are considering an appeal to the 9th U.S. Circuit Court of Appeals and other options, said George Kimbrell, its attorney. “The battle is far from over.”

Stan Abramson, an attorney who advises the Biotechnology Industry Organization, said he’s encouraged by the judge’s reasoning regarding state preemption.

Farmers in the Hawaiian Islands are dealing with the aftermath of a tropical hurricane and shouldn’t be expected to shoulder additional regulatory burdens, he said.

The ruling about Kauai’s regulations may also have implications for litigation over an even more controversial ordinance in Hawaii County that actually prohibits GMOs — particularly since the same judge is presiding over both lawsuits.

“If the judge has ruled that an annual (GMO disclosure) report is preempted, that seems to hint that the judge would rule that a ban, which is a more serious impediment, is preempted,” said Kershen.



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