A Hawaii federal judge recently ruled that a Maui County law banning GMO crops is invalid because it is pre-empted by federal and state law. [To read the full Order, click here.]
In November 2014, Maui County passed a ballot initiative “A Bill Placing a Moratorium on the Cultivation of Genetically Engineered Organisms” (“the Ordinance”). The Ordinance makes it “unlawful for any person or entity to knowingly propagate, cultivate, raise, grow, or test Genetically Engineered Organisms within the County of Maui.” An exception existed for organisms in mid-growth cycle at the time the Ordinance was passed. Persons violating the Ordinance could face civil penalties of $10,000 to $50,000 per violation, and each day a person is in violation of the Ordinance is considered a separate violation. Moreover, criminal penalties applied, making persons in violation of or permitting the violation of the Ordinance guilty of a misdemeanor. Criminal penalties included a fine of not more than $2,000 or imprisonment not to exceed one year. Further, the Ordinance allowed the Director of Environmental Management to enter property to remove GMOs.
Shortly after the Ordinance was passed, lawsuits were filed contesting the validity of the Ordinance. In particular, the plaintiffs claimed that the Ordinance was pre-empted by state and federal law.
Initially, the court took the opportunity to clarify what the decision does not address. “This order is not an attempt by this court to pass judgment on any benefit or detriment posed by GE activities or GMOs. Notwithstanding the concern that many people have expressed on both sides of these issues, and the visible (and sometimes audible) passion of members of the substantial audiences that have attended hearings in this case, those issues are not before this court on the present motions, and those who want those issues addressed must seek means other than the present order to accomplish that.”
With that background set, the court addressed three legal questions.
Is the Ordinance Pre-empted by Federal Law?
The Supremacy Clause of the Constitution provides that the Constitution and Laws of the United States are the “supreme Law of the Land.” This essentially means that where federal law and state law conflict, federal law trumps. In legal terms, “trumping” is called “pre-emption.” There are three types of pre-emption that can occur: (1)express; (2) implied field; and (3) implied conflict.
Express pre-emption occurs when federal law expressly states that it pre-empts state laws to the contrary. For example, a federal law might say “this law expressly pre-empts all state and local laws” related to a certain topic. Implied field pre-emption occurs when a state or local law attempts to regulate conduct in a field that such a comprehensive federal regulatory scheme exists that Congress has intended for federal law to govern. For example, the National Labor Relations Act has been found so comprehensive as to pre-empt state laws on similar issues. Implied conflict pre-emption occurs when complying with both state and federal requirements is impossible because the two laws directly conflict or the state/local law frustrates the purpose of the federal law. For example, if a federal law required something that a state law prohibited, conflict pre-emption would apply.
Here, the court found that the Ordinance was pre-empted by both express and implied pre-emption. As for express pre-emption, under federal law by the Plant Protection Act. The PPA states that “no State or political subdivision of a State may regulate the movement in interstate commerce of any article, means of conveyance, plant, biological control organism, noxious weed…” The Ordinance essentially considers GMOs to be “noxious weeds” and, therefore, the Ordinance is expressly pre-empted. With regard to implied conflict pre-emption, the court found that the Ordinance “frustrates the purpose of the Plant Protection Act.”
Is the Ordinance Pre-empted by State Law?
Under Hawaii law, a local law is pre-empted by state law if (1) the local law covers the same subject matter as a comprehensive state statutory scheme disclosing an express or implied intent to be exclusive and uniform throughout the state or (2) the local law conflicts with state law.
The court found that the Ordinance intrudes into the field of potentially dangerous plant regulation, for which a comprehensive state regulatory scheme exists. Hawaii gave authority to oversee the introduction, propagation, inspection, destruction and control of plants to the Hawaii Department of Agriculture. Numerous state statutes and regulations have been passed related to this topic. The court found this statutory scheme to show intent to be exclusive and uniform throughout the state.
Did Maui County Exceed Its Authority in Passing the Ordinance?
To determine if a state law pre-empts a local law, the analysis begins with the understanding that local entities have only the power conferred upon them by the state. Maui County has the authority to impose penalties up to $1,000 for violations of local ordinances. The penalty provisions of the Ordinance exceed this authority.
Why Do We Care?
Without question, issues surrounding genetically modified organisms are constantly in the news. Whether it be bans on growth of such organisms like this Ordinance or the lawsuit brought by corn farmers against Syngenta, these issues do not appear to be going away anytime soon. It is important for those of us involved in agriculture to be aware of the controversies related to this topic.