9th Circuit: "Field Preemption" Overrules Local Anti-GMO Ordinances

GMO-corn-seedsDealing a setback to citizens concerned about the effects of genetically engineered crops (GMO), the Ninth US Circuit Court of Appeals issued three decisions striking down county ordinances in Hawaii that banned or limited pesticides and GMO plants.

The rulings on Nov. 18 turned on  the issue of “field preemption,” where a local ordinance covers the same subject area that is the exclusive jurisdiction of a state or federal law. In these cases the ordinances are preempted.

The rulings were a victory for large corporate seed companies including Monsanto Company, Syngenta Seeds, Inc, Pioneer Hi-Bred International, Inc., Agrigenetics Inc. and BASF Plant Science LP.

More than 90% of all corn, soybeans and cotton grown in the US are now GMO varieties. Separately, Monsanto is facing mass tort litigation against its weed killer in Roundup Products Liability Litigation, MDL No. 2741 before U.S. District Judge Vince Chhabria in the Northern District of California.

Uphold summary judgment

The Ninth Circuit opinions are Atay, et al., v. County of Maui, et al.Syngenta Seeds, Inc., et al., v. County of Kauai, and an unpublished opinion, Hawai’i Papaya Industry Assoc., et al., v. County of Hawaii. In each case the Ninth Circuit upheld the trial court’s grant of summary judgment.

Atay v. Maui. In Maui County, voters approved a ballot initiative banning the cultivation of GMO organisms in 2014. The concern was about the environment, that GMO crops would create “superweeds” and other pests resistant to pesticides, and the reduction of biodiversity. The ordinance is expressly preempted by the Plant Protection Act, 7 USC Sec. 7756(b), and is impliedly preempted by five chapters of Hawaii law on harmful plants, seeds and weeds.

Syngenta v. Kauai. The Kauai County Council enacted an ordinance in 2013 concerning insecticides, herbicides and fungicides because residents reported having medical symptoms due to airborne pesticides from GMO farms. The ordinance required growers to warn the public about exactly when and where pesticides would be applied, the required them to create buffer zones between the crops and nearby schools and waterways.

The Ninth Circuit ruled that state laws preempt local laws if (1) the state and local laws address the same subject matter; (2) the state law comprehensively regulates that subject matter; and (3) the legislature intended the state law to be uniform and exclusive.

The Hawaii Pesticides Law, HRS Ch. 149A, governs pesticide notification requirements, and thus impliedly preempts county ordinances.

Hawaii Papaya v. Hawaii. The County of Hawaii enacted an ordinance banning open air testing, propagation and development of genetically-modified organisms. The court said the ordinance is expressly preempted by federal law, by the Plant Protection Act, by impliedly by state law Hawaii law, as set forth in the Atay ruling.

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