Ninth Circuit Deals Blow to GMO & Pesticide Bans Across Hawaii

HONOLULU (CN) – Purveyors of genetically modified crops and pesticides in Hawaii won four separate victories in the Ninth Circuit this past week, involving county bans on genetically modified crops and spraying near residential areas, hospitals and schools.

A three-judge panel of the Ninth Circuit affirmed a lower court ruling against bans of genetically engineered crops on Maui and the Big Island and restrictions on pesticide spraying on Kauai, finding the bans and restrictions are preempted by state law.

Lawyers for conservation groups had argued the counties were simply exercising valid police powers set aside by the state.

The Kauai County Council enacted Ordinance 960 in 2013, after the Waimea Canyon Middle School was twice evacuated and about 60 students were hospitalized with flu-like symptoms in 2006 and 2008.

The ordinance created no-spray buffer zones near schools and other buildings where people live, work, or receive medical care.

But the Ninth Circuit panel found that Ordinance 960 is impliedly preempted by the Hawaii Pesticides Law. In the cases of Maui and the Big Island’s bans on genetically engineered crops, the same panel found that federal law controlled.

Earthjustice attorney Paul Achitoff, who represented Kauai County through intervenors Kauai Kamika Ho’opono, Surfrider Foundation and the Pesticide Action Network of North America at the panel’s hearing in Honolulu this past June, lamented the rulings.

“I respect the court, but they were mistaken,” he said. “It’s unfortunate that an unfamiliar court that doesn’t understand Hawaii’s constitution ruled. The matter should have been referred to the state Supreme Court.”

The panel in the Maui appeal rejected sending the case to the Hawaii Supreme Court by upholding a federal judge’s decision not to do so.

Achitoff continued, “Did the state intend to preclude the county? The same reasoning would apply to a county passing an ordinance to cut down albizia trees that fall over in storms.”

At the June hearing, Achitoff had noted the state’s hands-off attitude toward previous legislation.

“Eight years ago, the county passed laws against [transgenic] coffee and taro,” he told the panel. “The state Department of Agriculture didn’t object. Nobody objected. The state has never objected.”

Achitoff said in a phone interview that the Ninth Circuit ruled the state has the ability to make rules. But he said state regulators have only been protecting the interests of GMO industries by “letting them plant where they want to plant and do what they want to do.”

He added, “If students were getting sick at Punahou (a prep school on Oahu), something would be happening. But this is just some middle school in Waimea.”

Now that the “dust has cleared” in the wake of the rulings that commercial crops are governed by the state – and field trials by the feds – conservation groups hope to target their efforts more effectively.

Earthjustice still has several lawsuits in court, as well as a petition with the U.S. Environmental Protection Agency. And the Hawaii Center for Food Safety said in a recent email that the group “must pivot our energy back toward the Legislature.”

A petition currently circulating that advocates for pesticide disclosure and spray buffer zones claims that there are 27 fields in Hawaii located within a mile of fields where companies like Monsanto and Dow spray restricted-use chemicals.

Monsanto, Dow, Pioneer-DuPont, BASF, and Syngenta each have massive operations in the state that together occupy tens of thousands of acres of former sugar and pineapple plantations.

The four interrelated Ninth Circuit decisions are: Syngenta Seeds v. County of Kauai, Robert Ito Farm v. County of Maui, Alika Atay v. County of Maui, and Hawai’i Papaya Industry v. County of Hawaii.

In all four cases, the panel included Chief Circuit Judge Sidney Thomas and Circuit Judges Consuelo Callahan and Mary Murguia.

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