Monsanto, Syngenta and other seed companies that farm in Hawaii won a significant victory after a federal appeals court ruled that counties can’t regulate pesticides or genetically modified crops.

The 9th U.S. Circuit Court of Appeals concluded Friday that Hawaii state pesticide law is comprehensive, and that the Legislature intended it to be “uniform and exclusive of additional, local rules.”

That means county ordinances governing agriculture that were overturned by a federal judge in 2014 and 2015 will not go into effect.

They include Bill 2491 on Kauai, which would have required large companies to disclose what pesticides they apply and where, as well as abide by buffer zones; a law on the Big Island banning new genetically modified crops; and a voter initiative in Maui County that sought to impose a moratorium on genetically engineered farming.

Anti-GMO supporters on Kauai celebrate new law requiring more disclosure from biotech companies, which has now been invalidated.
In 2013, anti-GMO supporters on Kauai celebrated a new law requiring more disclosure from biotech companies. The appeals court ruling affirms a court decision to strike down the ordinance. Sophie Cocke/Civil Beat

Bennette Misalucha, who leads the local trade group for seed companies, said in a statement that the decision “is good news for local agriculture in Hawaii.”

“The Hawaii Crop Improvement Association welcomes the protection that this decision provides Hawaii’s hard-working farmers and growers for standing up for science and for supporting continued innovation in agriculture,” she wrote.

Dan Clegg, who leads business operations for Monsanto Hawaii, said in an email that the company is looking forward to “continuing to support the communities in Maui, Molokai and Oahu where our approximately 1,000 local employees live and work.”

Monsanto has argued that the moratorium would have cost hundreds of jobs on Maui and Molokai.

“We’re listening and we’ve heard the concerns some people have about GMOs and today’s farming practice,” Clegg wrote.

Syngenta spokeswoman Laurie Yoshida said the company is happy with the results and continues to voluntarily report its pesticide use on Kauai through the Good Neighbor Program.

Hawaii Department of Agriculture director Scott Enright said more than a year ago that the voluntary reporting program would be expanded statewide but that hasn’t happened.

Enright said last week that he is still working on the expansion, along with other changes inspired by a recent study of pesticides on Kauai, and plans to announce them before the end of the year.

Rulings Uphold West Coast GMO Bans

Attorney George Kimbrell from the Center for Food Safety, which defended the county regulations, called the rulings on state preemption disappointing. He said the organization is still analyzing the decisions and considering its legal options.

But he noted that the appeals court also said that GMO crops raise economic and environmental concerns, and concluded that federal law does not preempt state or local regulations of them.

That means that the rulings, which apply to nine states on the West Coast and two island territories, leave in place bans on genetically engineered crops that several counties have passed in Oregon, Washington and California.

“It’s an important victory protecting and furthering the ability to create GE free zones,” said Kimbrell.

Yet in another loss for activists, the appeals court also concluded that federal law preempts state and county regulation of field trials and experimental genetically modified crops.

The appeals court further agreed with a lower court’s decision not to allow a Maui community group to defend the ballot initiative.

Attorney Christopher Landau argued on behalf of Syngenta Seeds.
Attorney Christopher Landau argued on behalf of Syngenta Seeds during last summer’s appeals court hearing, and successfully convinced judges that Hawaii has a comprehensive state agriculture law. Anthony Quintano/Civil Beat

Whereas many states like Vermont and Oregon have been embroiled in debates about labeling genetically modified food, the GMO debate in Hawaii has focused on seed companies’ farming practices.

The vast majority of corn nationwide is genetically modified and can be traced back to Hawaii, where large agricultural companies have been taking advantage of yearlong growing seasons.

But unlike California, Hawaii doesn’t require agricultural companies to report what pesticides they use, where and in what amounts. Efforts to require more disclosure and impose buffer zones for applying pesticides have consistently failed at the Legislature.

Fears about the potential environmental and public health effects of GMO farming prompted residents to take action at the local level.

After a heated hearing that lasted nearly 19 hours, the Kauai County Council passed a bill in 2013 requiring companies including Syngenta to disclose their pesticide use and whether they are growing GMO crops. Mayor Bernard Carvalho rejected the bill but the council overrode his veto.

Although no seed companies operate in Hawaii County, City Council members passed a bill in 2013 to require farmers growing GMO seeds to register and to ban the introduction of any new GMO crops. Mayor Billy Kenoi signed the measure.

In Maui County, more than 23,000 voters narrowly approved a temporary ban on genetically modified farming in 2014 despite Monsanto and its supporters spending over $7 million to defeat the initiative.

For Hawaii activists who want more regulations on GMO crops, Friday’s appeals court rulings suggest future advocacy should focus on the state Legislature and executive branch.

“The most important thing is we’re going to continue to stand and fight with the people of Hawaii against these chemical companies and push for better regulation of pesticides and of genetically engineered crops at every level,” Kimbrell said.

Read the rulings below:

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