County Ordinance Regulating Pesticide Use and Planting of GMO Crops Preempted By State Law
Updated: Jul 9, 2020
This post should not be relied upon as legal advice.
Recently the federal district court in Hawaii concluded that a Kauai County ordinance imposing regulations on pesticide applications and on the planting of genetically modified (GMO) crops was preempted by state law, click here. The court decision looking at this issue is a potentially growing area of litigation. Earlier this summer I posted about two counties in Oregon that had passed ordinances banning GMO crop production. Other counties and states could potentially implement similar bans.
Kauai’s ordinance was passed in November 2013 and would put new restrictions on farms using certain pesticides or growing GMO crops. The ordinance requires a commercial farm to disclose when the farm uses a restricted use pesticide and possesses a GMO. Buffer zones were required, by the ordinance when using a restricted use pesticide or growing a GMO. Finally, the ordinance required the county to undertake an environmental review of the use of pesticides and GMOs in the county and set fines for violations from $10,000 to $25,000 depending on the type violation. Major seed producers, like Syngenta and Monsanto, filed suit to invalidate the ordinance. Hawaii is a major area for seed companies to test new varieties because the climate allows for multiple growing seasons; consequently, this ordinance could have impacted variety testing by these companies.
The seed companies claimed that the ordinance was preempted by either state law or federal law. We will not look at the federal law issues, because the court found that federal law did not preempt the county ordinance. We will instead focus on claims that a variety of state laws potentially preempted the county ordinance. Preemption is a doctrine in law from the higher body which supersedes/ preempts the lower body’s law on the same subject; for example, if the United States has a law regulating X then the state is preempted from implementing a law to regulate X.
The court found that the ordinance regulated pesticides in two ways: recordkeeping and reporting (the pre- and post-application reporting and buffer zones. Hawaii, like Maryland and many other states, already has state laws which addressed reporting and recordkeeping. The state’s Department of Agriculture had been tasked by the legislature with setting out rules on pesticide applications and recordkeeping requirements. The court found that counties were absent from any of the rulemaking, enforcement, and oversight of pesticides. Because of this, the court found that the pesticide portion of the ordinance was preempted by state law.
The GMO provision in the ordinance was also preempted by state law. State law also gave oversight and rulemaking power to the U.S. Department of Agriculture over seeds and control of noxious weeds. The Ag Department was also vested with oversight and rulemaking powers over the introduction of plants into the state. This regulatory scheme also left out counties. For those reasons, the GMO provision was also preempted and could not take effect.
So why should you care about a county provision being preempted in Hawaii? Was this post just some way for me to tease you with photos of Hawaii or cast photos from Magnum P.I.? Counties attempting to regulate or ban production of GMOs in their counties have grown in recent years (for a list of those counties and state regulations Organic Consumers). This decision is one of the first looking to see if the attempt was preempted by state or federal law. Maryland and other states have similar laws that courts could also use to find that any county GMO ordinance is preempted.
But what if a state changes their statutes to allow a county oversight in pesticide regulation and regulation in introduction of new plants? That potentially changes the outcome of this court. I say potentially because there could be other factors which attorneys could argue preempt a county regulation.
This is a growing area of future litigation to keep our eyes on to see how it could potentially impact Maryland farming operations. It is also an area for which continued education of the public on agriculture may benefit consumers and the ag community.
For anyone interested in reading the opinion, please email me and I will send you a copy of the opinion (email@example.com). Also this post was 100 percent so I could post photos from Hawaii and Magnum P.I..