Legal battles over genetically modified organisms in Hawaii are expected to shape government authority over biotech crops across the West.
Three attempts to regulate GMOs by counties in that state — Kauai, Hawaii and Maui — have all been overturned by federal judges.
How those decisions play out in the 9th U.S. Circuit Court of Appeals will affect the ability of state and local governments to set their own rules for biotechnology, experts say.
The 9th Circuit has jurisdiction over seven states, including Oregon, Washington and California, where several counties have enacted GMO bans that are subject to its rulings.
“Hawaii is definitely the bellwether right now,” said Kristine Tidgren, staff attorney for the Center for Agricultural Law and Taxation at Iowa State University.
A federal judge most recently struck down Maui County’s prohibition against biotech crops on multiple legal grounds.
Significantly, Chief U.S. District Judge Susan Oki Mollway held that federal regulations entirely pre-empt Maui County’s ordinance banning GMOs, which was passed last year.
If the ruling is upheld by the 9th Circuit, that would directly implicate other GMO bans within the same jurisdiction, meaning they’d be pre-empted as well, said Tidgren.
Conversely, if the appellate court finds that state and local government GMO rules are not pre-empted by the federal regulations, then it would clear the way for such ordinances.
“It’s a huge case for local and state GMO bans,” Tidgren said. “The stakes are very high. All eyes will be on the 9th Circuit when this case goes forward.”
Supporters of county GMO bans contend that Mollway’s legal reasoning is faulty.
In their view, federal regulations cannot pre-empt state and local GMO regulations once the USDA allows such crops to be grown without restriction.
The 9th Circuit has held that USDA has no authority over biotech crops once it determines they’re not plant pests, so commercialized GMOs aren’t subject to federal regulations, critics say.
“I don’t believe there’s any basis whatsoever that federal law pre-empts state law over deregulated crops,” said Paul Achitoff, an attorney for groups that support the ban.
The situation is complicated by the fact that another federal judge earlier reached a different conclusion regarding a similar GMO ban in Hawaii County, he said.
In that case, the judge found that the GMO ban is pre-empted by federal regulation only in regard to crops that remain regulated by USDA, not those that have been totally deregulated, Achitoff said.
That opinion is likely to be reviewed by the 9th Circuit much earlier than the recent Maui decision.
If the panel of judges hearing the Maui County case comes to a different conclusion than the panel for Hawaii County — which isn’t likely but remains possible — that could set the stage for a broader “en banc” review by a larger group of 9th Circuit judges.
Another GMO case out of Kauai County is likely to be decided first, but that lawsuit pertains to regulations that require growers to report the location of GMO crops but don’t prohibit them.
It’s unlikely that all three of the cases will be resolved earlier than late 2016, experts say.