Upcoming oral arguments in a lawsuit over a Hawaiian county’s prohibition against genetically modified organisms will likely focus on whether the ban is pre-empted by federal and state laws.
Opponents of the GMO ban have asked a federal judge to invalidate the ordinance because the county government cannot override rules and laws enacted by federal and state agencies.
The County of Hawaii and supporters of the ordinance counter that existing regulations don’t address their concerns about genetically engineered crops cross-pollinating with conventional and organic plants and thus don’t preclude the county government from trying to prevent that possibility.
The two sides have submitted court briefs buttressing their positions and are scheduled to appear Oct. 23 before U.S. Magistrate Judge Barry Kurren for oral arguments.
The case is being watched closely by biotech proponents and critics since it could have implications for other litigation over GMOs, such as a possible lawsuit against a similar ban in Oregon’s Jackson County.
Farm and biotech groups that filed a complaint against the ordinance argue that it’s superseded by the “coordinated framework” of GMO oversight by the USDA, the U.S. Environmental Protection Agency and the U.S. Food and Drug Administration.
The federal policy, under which genetically engineered crops are studied prior to deregulation, is in conflict with the county ordinance, which imposes a “near-blanket ban” without any analysis, the plaintiffs claim.
“In other words, the county is choosing specifically to ignore and contradict the federal structure and its hundreds of associated federal scientific determinations based on an unsubstantiated gut reaction to technology that it does not understand,” plaintiffs said in a court brief.
Opponents of the ban also claim that state law governs agriculture and counties don’t have the authority to regulate GMOs.
The county rejects these pre-emption arguments, arguing that the ordinance was passed precisely because federal and state laws fail to protect organic and conventional farmers from GMOs.
Federal regulations don’t pre-empt the county ordinance as they deal with the movement of genetically engineered crops in interstate commerce while the GMO ban only applies to crops within the county, supporters claim.
The USDA has also said its authority is limited to genetically engineered crops that pose a plant pest risk — once the agency determines a no such risk exists, it no longer has authority to regulate the crop, according to the county. “Therefore, it is difficult to understand how the (USDA) regulations could be considered occupying the entire field of regulating genetically modified plants.”
As for USDA permits for GMO field trials, they merely allow testing to take place but don’t create a “federal right” to plant the crop, the county said.
“The mere possession of a permit does not immunize biotech companies or other entities from the county’s exercise of its police powers,” the county said.
Supporters of the ban also dispute the contention that the State of Hawaii has exclusive jurisdiction over agricultural regulations.
The subject of state law pre-emption is touchy for the county because earlier this year, the same federal judge ruled that another county’s requirement that the location of GMOs be disclosed was precluded by state agriculture rules.
The county claims its GMO ban isn’t pre-empted by state law because “it doesn’t prohibit what any statute permits, doesn’t permit what any statute prohibits and certainly doesn’t cover the same subject matter as any comprehensive statutory scheme because there is no statutory scheme concerning genetically engineered crops or plants,” the county said.