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U.S. Court of Appeals Says Local Governments Can Prohibit GE Crops

States have authority to ban, Hawai‘i counties left out in landmark decisions
A sign warning of pesticide application near a field of GMO crops on Kauaʻi.

A sign warning of pesticide application near a cropfield on Kauaʻi. Hawaiʻi has more experimental field trials of genetically engineered crops than any other state in the nation.

Mike Coots for Earthjustice
November 18, 2016
Honolulu —

Today the United States Court of Appeals for the Ninth Circuit issued its decisions on whether federal and Hawaiʻi state laws preempt Hawaiʻi counties’ authority to regulate genetically engineered (GE) crops and pesticide use. Of significance to state and local communities throughout the United States, the Ninth Circuit ruled that federal law—specifically, the Plant Protection Act—does not prohibit states and counties from passing local laws to regulate and ban commercially-grown GE crops.

“Today’s decision to allow states and counties to ban or regulate GE crops is an important victory for GE-free seed sanctuaries and small communities and farmers around the country,” said George Kimbrell, senior attorney for the Center for Food Safety.

In granting its decision the Court recognized potential harm to farmers and environment from the widespread planting of GE crops, asserting, “the cultivation and testing of GE plants raise several well-documented concerns.” Notably, the Court affirmed, “transgenic contamination has previously caused significant economic impacts on farmers of conventional, non-GE crops.” The Court acknowledged as well that “the cultivation of GE crops also may raise environmental concerns, such as harm to beneficial plants and animals caused by the increased use of pesticides sometimes associated with testing and growing GE crops, the proliferation of ‘superweeds’ and other pests resistant to pesticides, and the reduction of biodiversity.” The Court went on to declare: “The regulation of commercialized crops, both of GE and traditional varieties, remains within the authority of state and local governments.”

At the same time, however, the Court ruled that under Hawaiʻi law, counties and municipalities do not have the authority to regulate GE crops (as some in other states do), and that Hawai‘i state law places such authority in the hands of the State alone.

Earthjustice attorney Paul Achitoff commented: “We’re disappointed that the Court misinterpreted Hawaiʻi law and concluded the Hawaiʻi legislature decided Hawaiʻi counties lack any such authority. The legislature did not, and the decision leaves Hawaiʻi unprotected from the harms the Ninth Circuit acknowledged. We believe that when Hawai‘i’s state courts have an opportunity, they will reject the Ninth Circuit’s conclusion on this point and allow Hawaiʻi’s people to protect themselves, since the State certainly hasn’t protected them.”

The Court also ruled that the USDA alone has the authority to regulate field trials and experimental GE crops; neither states nor local governments can ban or approve. This is particularly troubling to communities in Hawaiʻi, since the many field trials and associated pesticide use in Hawaiʻi poses significant risks to local citizens and the environment.

“We are extremely disappointed with the ruling that some experimental GE field trials can only be regulated by USDA, and are considering all legal options. Most importantly, we continue to stand and fight with the people of Hawaiʻi against these chemical companies,” said Kimbrell.

"As a mother and a resident of Kekaha, Kauaʻi, I will continue to stand up and protect my family and my community,” says Malia Kahaleʻina Chun, a mother, educator and Native Hawaiian cultural practitioner. “It is our responsibility to insure that our keiki have access to clean air, clean water and to ʻāina that sustains them."

Attorneys with Center for Food Safety and Earthjustice, who represented local residents, conservation groups, and Hawaiʻi County in the proceedings, are analyzing the full scope of the court’s decisions and will be considering options that would protect Hawaiʻi’s people, farms and the environment.

ADDITIONAL QUOTES:

Paul Towers, Pesticide Action Network North America’s Organizing Director and Policy Advocate: "The courts have affirmed that states have the right to protect their residents from harmful pesticides and promote healthy farming practices. Unfortunately, the ruling ignores the history and role of democracy in Hawaiʻi. Despite the efforts to limit local control, communities should still have a say what's grown on their soil, and what ends up in their air and water."

Fern Ānuenue Rosenstiel, Kauaʻi resident and co-founder of ʻOhana ʻO Kauaʻi: “Today's ruling violates our rights as humans to clean water and air, and our ability to protect our people and environment. As we continue to fight, we will push even harder for the state to take immediate action. We have waited far to long for better regulations and protections and we must fight harder than ever for justice.”

Angela Howe, Surfrider Foundation Legal Director: "While we are very disappointed that the hard work of the County of Kauaʻi in protecting their environment has been deemed invalid here, we are glad there is a silver lining in that the court acknowledged that these types of ordinances are not generally preempted at the state and local level elsewhere

Contacts

Paul Achitoff, Earthjustice, (808) 599-2436

Courtney Sexton, Center for Food Safety, (202) 547-9359

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