A federal appeals court is weighing whether Hawaii counties have the right to regulate genetically modified crops and impose restrictions on how farmers apply pesticides.

Three California-based judges flew to Honolulu to hear oral arguments Wednesday in a string of cases involving regulations on genetically engineered agriculture in Kauai County, Hawaii County and Maui County.

The 9th U.S. Circuit Court of Appeals hearings were a critical step in a multi-year effort by neighbor island residents to regulate genetically engineered crops. But the rulings, which could still take months to be made, may have implications far beyond Hawaii.

Andrew Kimbrell, executive director of the Center for Food Safety, flew to Hawaii from Washington, D.C. to defend county GMO and pesticide regulations.
Andrew Kimbrell, executive director of the Center for Food Safety, flew to Hawaii from Washington, D.C., to defend county GMO and pesticide regulations. Anthony Quintano/Civil Beat

Andrew Kimbrell, executive director for the Center for Food Safety, an advocacy group that helped defend Kauai County and Hawaii County ordinances, said his organization counted 137 state and county laws that could potentially be affected by the rulings.

“It was historic, not just for Hawaii and its future,” Kimbrell said of Wednesday’s hearings. “This is also a historic moment for states across the country who want the right to know about what pesticides are being used and want the right to say yes or no to GMOs.”

Seed companies including Monsanto and Syngenta Seeds employ hundreds of people in Hawaii and produce the state’s biggest export crop, seed corn. But many local residents are concerned about the environmental and health impacts of the pesticides that companies use on genetically engineered crops.

“This is also a historic moment for states across the country who want the right to know about what pesticides are being used and want the right to say yes or no to GMOs.”

The hearings focused on the question of whether counties step into legal territory that belongs to the state and federal governments when they attempt to regulate pesticides and genetically modified farming.

• The Kauai County Council passed Bill 2491 after a nearly 19-hour hearing in 2013 requiring large agricultural companies to abide by pesticide reporting requirements and disclose whether they are growing GMO crops.

• The Hawaii County Council followed a month later with a bill that prohibited the introduction of new genetically modified crops on the Big Island and required GMO papaya farmers to register with the county.

• In November 2014, Maui County voters approved a temporary ban on genetically modified farming despite Monsanto and its supporters spending over $7 million to defeat the initiative.

Seed companies and local farmers sued to overturn all three of the ordinances and federal judges in Hawaii agreed that state law, and to some degree federal law, preempted the counties from implementing the laws.

Judge Consuelo Callahan asked many questions during Wednesday's oral arguments.
Judge Consuelo Callahan was a prolific questioner during Wednesday’s oral arguments. Anthony Quintano/Civil Beat

Both sides flew in attorneys from Washington, D.C., to argue the cases at the Bankruptcy Courthouse in downtown Honolulu. Dozens of people jammed the courtroom and filled an overflow room.

Kimbrell described the hearings as an opportunity for the counties to “defend their right to know and their right to say no to GMOs.”

But Bennette Misalucha, who leads the local trade group for seed companies, wrote in an email after the hearings that the seed industry has been in Hawaii for 50 years and doesn’t want to leave.

“We look forward to the outcome of today’s hearings and are optimistic that the U.S. Court of Appeals will affirm the district court’s judgment,” she wrote.

A Question Of Authority

Syngenta attorney Christopher Landau, a partner at the Washington, D.C., firm Kirkland & Ellis, argued Wednesday that the state of Hawaii has a comprehensive framework for regulating agriculture.

For Hawaii County to ban a plant that the state Department of Agriculture doesn’t regulate is “preposterous,” Landau argued.

He also contended that the state’s regulatory framework precludes Kauai County from requiring companies to disclose if they’re growing genetically engineered crops.

Judge Consuelo Callahan seemed skeptical about that, and noted that Landau’s arguments contending that Hawaii law pre-empts Kauai County from regulating pesticides seemed stronger.

Attorney Christopher Landau argued on behalf of Syngenta Seeds.
Attorney Christopher Landau argued on behalf of Syngenta Seeds. Anthony Quintano/Civil Beat

Attorney Paul Achitoff, who works at the Honolulu office of the national nonprofit Earthjustice, contended that state law governing agriculture is not comprehensive and doesn’t prevent the counties from passing their own laws.

He pointed out that Hawaii County passed a law eight years ago that prohibits genetically engineered coffee and genetically engineered taro and the state did not object to that.

But former state Attorney General Margery Bronster, arguing against Maui’s GMO farming moratorium on behalf of Monsanto, pointed out that Hawaii has an “incredibly centralized government,” citing the state’s school system, hospital system, and community college system as examples.

“The argument seems to be if the Legislature did not say the counties couldn’t do it, they can,” Bronster said. “That simply disregards the manner in which our state government is set up. Counties are only allowed to do what is specifically delegated to the counties.”

Judge Mary Murguia questions attorneys during Wednesday's hearing.
Judge Mary Murguia questions attorneys during Wednesday’s hearings. Anthony Quintano/Civil Beat

Open To Interpretation?

Judge Mary Murguia asked Landau how he knew that the Hawaii Legislature didn’t intend for the state Department of Agriculture regulations to set a minimum statewide policy, thus allowing the county to supplement those regulations.

“A state can’t anticipate everything,” she said.

“There is absolutely nothing that indicates it’s just setting a minimum standard,” Landau said, citing case law.

“There’s nothing saying that it’s not,” Murguia replied.

That exchange comforted Gary Hooser, the Kauai County Council member who introduced Kauai’s pesticide and GMO farming regulations.

Hooser said during a break that it’s frustrating to be told he, as a councilman, doesn’t have the authority to pass measures that regulate agriculture in Kauai.

Advocates for greater regulation of pesticide use and GMO farming have repeatedly urged state lawmakers to adopt stricter reporting requirements and impose buffer zones on large farms, but those proposals never make it very far.

Potentially Broad Implications

While the debate over GMO farming has largely taken place on a hyper-local scale in Hawaii, the ruling could have wide-ranging implications depending on how broadly it’s written.

The 9th Circuit Court of Appeals has jurisdiction over federal district courts in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam and the Northern Mariana Islands.

Former state attorney general Margery Bronster, right, argued on behalf of Monsanto against Maui County's GMO farming moratorium.
Former state Attorney General Margery Bronster, right, argued on behalf of Monsanto against Maui County’s GMO farming moratorium. Anthony Quintano/Civil Beat

California’s Mendocino County became the first county in the nation to ban genetically modified crops in 2004.

Now five counties in California have banned the cultivation of GMO crops, along with two counties in Oregon, Kimbrell said.

Debates over GMO crops elsewhere have often revolved around labeling food that contains genetically engineered ingredients, rather than farming. A Vermont law requiring labels for GMO food is scheduled to go into effect July 1.

Watch the hearings below starting at the 45-minute mark:

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