State and local GMO bans declared legal

Workers bag tassels of GMO corn to collect pollen in a Syngenta test plot about three miles northwest of Lihue on the island of Kauai in this file photo. The 9th U.S. Circuit Court of Appeals has resolved a lawsuit over a GMO ban in Hawaii's Maui County that has implications for other Western states.

Federal law does not pre-empt state or local governments from banning genetically engineered crops that have been deregulated by USDA, according to a federal appeals court.

The 9th U.S. Circuit Court of Appeals has reversed an earlier ruling that held Maui County in Hawaii was prohibited from banning commercialized genetically modified organisms in 2014 because the ordinance was pre-empted by federal rules for biotechnology.

Because the USDA lacks jurisdiction over biotech crops once they’re deregulated, there is no conflict between local regulations and federal rules and laws, the 9th Circuit said.

Prohibiting states and local governments from regulating crops that were once considered plant pests would have a “backwards effect” because they can still regulate conventional crops that “raise fewer concerns,” the 9th Circuit held.

“Such a holding would have far-reaching practical effects. Because a large percentage of commercial crops grown in the United States are GE crops, states and counties across the nation would be prevented from regulating an enormous swath of agriculture. We do not believe that Congress so intended,” the ruling said.

Even so, state and local GMO bans cannot apply to biotech crops that remain regulated by USDA, since the agency retains jurisdiction over them until they’re commercialized, the 9th Circuit said.

While the 9th Circuit ruled in favor of biotech critics on federal pre-emption, Maui County’s GMO ban remains overturned under its recent ruling. The appellate court found that the ordinance was still pre-empted by Hawaii’s comprehensive state laws and rules that deal with the same subject matter of potentially harmful plants.

“By banning commercialized GE plants, the ordinance impermissibly intrudes into this area of exclusive state regulation and thus is beyond the county’s authority” under Hawaiian law, the 9th Circuit said.

The 9th Circuit’s opinion is significant for nine Western states under its jurisdiction because counties in Oregon, Washington and California have GMO bans.

If the appellate court had found that federal law pre-empts local biotech regulations, those ordinances would have been affected.

“It’s a relief. Certainly, this is not a worst-case scenario,” said Paul Achitoff, attorney for the Earthjustice law firm that represented biotech critics in the case.

Even so, Achitoff said he’s disappointed the 9th Circuit ruled that state law pre-empts the Maui ordinance, which he characterized as “a loss for Hawaii’s people.”

Local ordinances are necessary in Hawaii, where biotech breeding takes place, because state regulations predate GMOs and are essentially a “vacuum,” he said. “The state has not been protecting people in that respect.”

The Monsanto Co., a biotech developer that sued to overturn the law, said it’s proud to be part of the farming community in Hawaii, where it has 1,000 employees, and understands that it has a “responsibility to farm sustainably and to work collaboratively,” according to an emailed statement.

“We’re listening and we’ve heard the concerns some people have about GMOs and today’s farming practices. Our commitment to ongoing dialogue with our neighbors doesn’t stop today,” the statement said.

Capital Press was unable to reach attorneys for other parties joined in the lawsuit opposing the Maui ordinance.

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