Sunday, August 7, 2022
Hawai'i Free Press

Current Articles | Archives

Thursday, July 14, 2016
Ninth Circuit Appears Poised To Preempt Hawaii 'GMO' Ordinances
By Selected News Articles @ 12:01 AM :: 3195 Views :: GMOs

At Oral Argument, Ninth Circuit Appeared Poised To Preempt Hawaii 'GMO' Ordinances

by Greg Herbers, Washington Legal Foundation, Forbes, July 12, 2016

On June 15, 2016, the U.S. Court of Appeals for the Ninth Circuit heard oral arguments in three related bids to invalidate separate Hawaiian county ordinances.  The counties of Maui and Hawaii ban the cultivation of genetically engineered crops or plants, while Kauai County requires that cultivation of genetically modified organisms (GMOs) be annually disclosed to the county.  Opponents allege that the ordinances are preempted by state and federal statutes and regulations governing agriculture and “plant pests.”  Three separate federal district courts found that the ordinances were preempted, causing the counties, or their interested intervenors, to appeal to the Ninth Circuit.

However, the three district courts found the ordinances preempted by different laws and through the application of different theories, which made for a complicated oral argument.  Before the district courts, ordinance opponents had argued that the county laws were both expressly and impliedly preempted because they conflicted with the relevant state and federal laws.  Specifically, the opponents claimed that the federal Plant Protection Act (PPA), which authorizes the U.S. Secretary of Agriculture to prohibit or restrict the movement of “plant pest[s]” and “noxious weed[s],” expressly preempts the ordinances and, because they are in conflict with it, also impliedly preempts them.  Further, under the unique Hawaiian preemption jurisprudence, the opponents argued that various state laws, including the Hawaiian Department of Agriculture’s Noxious Weed Rules, cover the same regulatory subject matter and occupy the field, preempting any regulatory action by the counties.

While the opponents made similar arguments, the district courts found the ordinances preempted through different theories.  In Robert Ito Farm, Inc. v. County of Maui, the district court found all three forms of preemption applied.  As to federal preemption, the court cited PPA’s preemption provision, which states that “no State or political subdivision of a State may regulate the movement in interstate commerce of any … plant pest [or] noxious weed.”  Because, under PPA, the U.S. Department of Agriculture designates which species qualify as plant pests or noxious weeds and the Department has chosen to not regulate all GMOs as pests or weeds, the court held that the statute expressly preempts any state or local attempts to ban GMOs.  Similarly, because the ordinance bans GMOs that PPA would allow, it conflicts with PPA and is impliedly preempted.  Finally, the court held that the ordinance dealt with the same subject matter as several Hawaiian statutes that vested the authority to regulate plants that are detrimental to the state in the Hawaiian Department of Agriculture and Board of Agriculture.  The court held that the Hawaiian legislature intended these state agencies to wield exclusive authority, preempting Maui’s ordinance.

In contrast, the two other district courts both applied the same analytical framework, but came to slightly different conclusions.  In Hawaii Floriculture and Nursery Association v. County of Hawaii, the court agreed that PPA expressly preempted the ordinance because Hawaii County sought to ban GMOs that the U.S. Department of Agriculture allowed and also that the state regulatory scheme occupies the field, impliedly preempting the ordinance.  However, the court held that the opponents had not established Congress’s clear intent for PPA to occupy the field or that the ordinance directly conflicts with PPA.  Therefore, the court held that the ordinance was not impliedly preempted by federal law.

Finally, in Syngenta Seeds, Inc. v. County of Kauai, the district court found no federal preemption because the ordinance does not regulate the movement of plants (it merely requires annual disclosure of the use of GMOs) and thus neither falls within the purview of PPA’s preemption clause nor conflicts with the federal statute.  However, the court held that Kauai’s ordinance was preempted by state laws for the same reasons as the other courts explained: the state’s agricultural regulatory scheme left no room for the County’s ordinance.

On appeal, the three-judge panel consisted of Chief Judge Sidney Thomas, Judge Consuelo Callahan and Judge Mary Murguia.  They considered all three of the opponents’ arguments for preemption.  Based on the oral arguments in the three cases, the panel did not seem equally sympathetic to all three preemption theories.  Judges Callahan and Murguia asked all parties probing questions about the scope of Hawaii’s agriculture regulatory scheme, in an attempt to determine whether the legislature intended to prevent counties from regulating, and whether the ordinances in fact conflicted with PPA.

Tellingly, Judges Callahan and Murguia also pushed the advocates to determine whether different theories of preemption would have different practical effects on the ordinances.  The judges appeared to express a desire to limit the scope of their holding while still finding the ordinances invalid; several questions regarded whether the court could invalidate the ordinances without reaching preemption, a finding not addressed by any of the district courts.  Judge Callahan was the most direct when she asked—while qualifying that it was merely a hypothetical—how much of the ordinances would survive if the court held that they were only expressly preempted by federal law.

Based on the questions asked during oral arguments—admittedly an unpredictable exercise—the panel seems inclined to invalidate at least the more restrictive Maui and Hawaii ordinances.  However, since the judges seemed anxious to avoid an overly broad holding, the court might write its opinion in a way to limit its practical effect.  Even so limited, any holding that invalidates the ordinances would restore the type of regulatory uniformity that is essential for nationally engaged businesses, and perhaps also deter localities in other states from following Maui, Hawaii and Kauai’s lead.

Links

TEXT "follow HawaiiFreePress" to 40404

Register to Vote

2aHawaii

808 Silent Majority

ACA Signups Hawaii

Alliance Defending Freedom

Aloha Pregnancy Care Center

American Council of Trustees and Alumni

AntiPlanner

Antonio Gramsci Reading List

A Place for Women in Waipio

Astronomy Hawaii

Back da Blue Hawaii

Ballotpedia Hawaii

Better Hawaii

Broken Trust

Build More Hawaiian Homes Working Group

ChinaTownWatch.com

Christian Homeschoolers of Hawaii

Cliff Slater's Second Opinion

DVids Hawaii

FIRE

Fix Oahu!

Frontline: The Fixers

Genetic Literacy Project

Grassroot Institute

Habele.org

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii Coalition Against Legalized Gambling

Hawaii ConCon Info

Hawaii Credit Union Watch

Hawaii Crop Improvement Association

Hawaii Debt Clock

Hawaii Defense Foundation

Hawaii Family Advocates

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federalist Society

Hawaii Federation of Republican Women

Hawaii Future Project

Hawaii Gathering of Eagles

Hawaii History Blog

Hawaii Homeschool Association

Hawaii Jihadi Trial

Hawaii Legal News

Hawaii Legal Short-Term Rental Alliance

Hawaii Life Alliance

Hawaii March for Life

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Shippers Council

Hawaii Smokers Alliance

Hawaii State Data Lab

Hawaii Together

HIEC.Coop

HiFiCo

Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Navy League

Honolulu Traffic

House Minority Blog

Imua TMT

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

Investigative Project on Terrorism

July 4 in Hawaii

Kakaako Cares

Keep Hawaii's Heroes

Land and Power in Hawaii

Legislative Committee Analysis Tool

Lessons in Firearm Education

Lingle Years

Malulani Foundation

Managed Care Matters -- Hawaii

Malama Pregnancy Center of Maui

Mauna Kea Recreational Users Group

MentalIllnessPolicy.org

Military Home Educators' Network Oahu

Missile Defense Advocacy

MIS Veterans Hawaii

NAMI Hawaii

Natatorium.org

National Christian Foundation Hawaii

National Parents Org Hawaii

NFIB Hawaii News

No GMO Means No Aloha

Not Dead Yet, Hawaii

NRA-ILA Hawaii

Oahu Alternative Transport

Obookiah

OHA Lies

Opt Out Today

OurFutureHawaii.com

Patients Rights Council Hawaii

PEACE Hawaii

People vs Machine

Pritchett Cartoons

Pro-GMO Hawaii

P.U.E.O.

RailRipoff.com

Rental by Owner Awareness Assn

ReRoute the Rail

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

Robotics Organizing Committee

Save Dillingham Airfield

School Choice in Hawaii

SenatorFong.com

Sink the Jones Act

Statehood for Guam

Talking Tax

Tax Foundation of Hawaii

The Real Hanabusa

Time Out Honolulu

Trustee Akina KWO Columns

UCC Truths

US Tax Foundation Hawaii Info

VAREP Honolulu

Waagey.org

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii

Yes2TMT