The United States Court of Appeals for the Ninth Circuit recently found that a local law passed by the County of Kauai attempting to regulate pesticide use and genetically modified crops is pre-empted by state law. [Read the full-opinion-here.]
Numerous seed companies plant and test genetically modified crops, such as corn, soybeans, and rice in Hawaii. They spray a variety of pesticides–including insecticides, herbicides, and fungicides–on the crops.
In 2013, the County of Kauai passed Ordinance 960, aimed at regulating the application of pesticides. Specifically, the Ordinance requires there to be “buffer zones” between fields where pesticides are applied and neighboring properties, mandates notification by way of signs and weekly notifications to neighbors before and after pesticides are applied, and requires a weekly mandatory report disclosing where pesticides have been applied.
On the state level, the Hawaii Pesticides Law also regulates the use of pesticides, including addressing where pesticides may be applied. The law includes provisions dealing with off label uses, requires standards for who may apply restricted use pesticides, and other issues. The statute allows the Department of Agriculture to establish additional rules and standards related to pesticide application.
Generally, if a local ordinance conflicts with a state or federal ordinance on the same topic, the local law is pre-empted. Pre-emption may be either express or implied. Express pre-emption occurs when a statute literally says, “this statute pre-empts any local laws on this subject.” An example of this was seen in the federal GMO labeling law passed last year. Implied pre-emption, on the otherhand, does not expressly state that it will pre-empt a lower level law, but occurs in two ways: conflict pre-emption and field pre-emption. Conflict pre-emption states that if there is a conflict between a local law and a state or federal law, meaning that a person could not comply with both, the law is pre-empted. Field pre-emption occurs if there exists a complex state statutory scheme reserving a certain topic for exclusive treatment by the state legislative body. For example, a state law attempting to regulate air travel would likely be pre-empted by the federal system in place for aviation. Under Hawaii law, the test to determine if conflict pre-emption exists is: (1) the state and local laws address he same subject matter; (2) the state law comprehensively regulates the subject matter; and (3) the legislature intended the state law to be uniform and exclusive.
Syngenta Seeds, Inc., along with several other seed company plaintiffs, filed suit in 2014 against the County claiming that the local ordinance was pre-empted by the state statute. The defendants asserted a number of claims, including an argument that the local statute was invalid as it was impliedly pre-empted by the state statute.
The trial court sided with the defendants, finding that the state statutes created a comprehensive regulatory scheme, therefore pre-empting any local laws on the same topic.
On appeal, the United States Court of Appeals for the Ninth Circuit affirmed. Because both the Hawaii Pesticides Law and Ordinance 960 address the same issue–permissible areas of application and record-keeping requirements, pre-emption was appropriate. Next, the court found that the state’s regulatory scheme for addressing pesticide use is comprehensive. Finally, the court found that evidence showed that the legislature intended the regulation of pesticides by the state to be uniform and exclusive.
Why Should We Care?
This case is a good illustration and reminder of the law of pre-emption. There are certain areas, including pesticide regulation, where the state or federal government will have full control and be able to trump a local law. We see this in a number of contexts related to agricultural law, including GMO labeling, growing GMO crops, and local laws regulating oil and gas production.