United States: Maui GMO Ban Overturned; Federal Court Remains Consistent On Preemption Analysis

This week, the federal district court in Hawaii struck down a Maui County law imposing a moratorium on the cultivation of genetically engineered organisms (GE plants, or GMOs). This decision is the third of three challenges to county laws in Hawaii imposing restrictions on GE plants (the other two involved challenges to a Hawaii County ordinance and a Kauai County ordinance). In each decision, the court held the local laws were preempted by federal law, state law, or both. As the number of local laws restricting the growth and cultivation of GE plants rises, this decision will likely inform future legal challenges.

Last November, Maui County voters passed a ballot initiative (Maui Ordinance) that makes it unlawful to "propagate, cultivate, raise, grow or test Genetically Engineered Organisms within the County of Maui." Opinion at 6 (citing Maui Ordinance). A group of plaintiffs filed suit challenging the ordinance, arguing that federal and state law preempted it. The court agreed with the plaintiffs on both grounds.

The court first determined that the federal Plant Protection Act (PPA) expressly preempted the Maui Ordinance. The PPA contains a preemption clause that prohibits a state (or political subdivision of a state) from regulating a plant "in order to control ... or prevent the introduction or dissemination of a ... plant pest, or noxious weed" where the Secretary of Agriculture has issued a regulation preventing the dissemination of the plant pest or noxious weed. 7 U.S.C. § 7756(b). The court found this provision applicable because the Secretary of Agriculture promulgated regulations governing the "introduction of organisms and products altered or produced through genetic engineering that are plant pests or are believed to be plant pests." Op. at 26 (citing 7 C.F.R. § 340.0 n.1). These regulations prohibit persons from introducing a "regulated article" unless the person complies with the provisions in 7 C.F.R. Part 340. Because the Maui Ordinance bans genetically engineered plants regulated (or permitted) by the PPA, the court found it "directly conflicts with the regulation set forth in section 340.0 allowing GE organisms under certain circumstances." Op. at 29. Thus, the court held the Maui Ordinance was preempted because it sought to regulate GE plants on the basis that they are plant pests or noxious weeds. Id. at 30-31.

Notwithstanding the express preemption clause, the court concluded that the PPA would still preempt the Maui Ordinance because the local law frustrates the purpose of the PPA. Op. at 37. One purpose of the PPA is to set "a national standard governing the movement of plants pests and noxious weeds in interstate commerce based on sound science." Op. at 37 (citing 7 U.S.C. § 7701). The Maui Ordinance would disrupt the national standard by applying a different, more restrictive standard in Maui County. Id. Given this conflict, the court determined the local law could not coexist with the federal law.

In the final portion of its preemption decision, the court ruled that state law also preempted the Maui Ordinance because the county law intruded on an area of law reserved to the state. The Hawaii legislature reserved to the State the authority to enact laws of general application and empowered the counties to enact ordinances not inconsistent with state law. Op. at 40. Pursuant to its authority, the State promulgated law governing plants that may be "injurious, harmful, or detrimental" to agriculture, horticulture, the environment, or animal or public health. Op. at 44 (citing Haw. Rev. Stat. §§ 141-2, 150A-6.1(b)). The State also authorized the Hawaii Department of Agriculture to establish procedures to designate qualifying plants as "noxious weeds" and adopt rules to control and eradicate them. Id. (citing Haw. Rev. Stat. §§ 152-1, 152-2). The court found these statutes and corresponding administrative regulations "create a comprehensive scheme addressing the same subject matter as the Maui Ordinance." Id. at 45. On account of the overlapping regulation and the fact that state law did not empower counties to play a role in this process, the court held state law preempted the Maui Ordinance. Id. at 48-49.

The court's opinion, authored by Judge Mollway, is important not only because it is consistent with Magistrate Judge Kurren's two similar preemption opinions invalidating similar county laws, but also because its analysis is applicable beyond Hawaii's borders. While the state preemption analysis lacks nationwide applicability given that other states' laws and the power of local governments vary significantly, the federal preemption analysis should be consistent across the country. Given that a number of states (or political subdivisions) are considering laws designed to ban the cultivation of GE plants (or have already passed such measures), this recent decision should be frequently cited as the main argument for overturning local laws or regulations. Additionally, the Hawaii cases, which are the only ones addressing this issue in the context of GE plants, suggest that all local laws that propose to govern GE plants and are inconsistent with the PPA are likely unenforceable.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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