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December 05, 2016 - Environmental Law, Class Action

The Ninth Circuit Kills GMO Pesticide Regulations in Hawaii Counties

The Ninth Circuit Kills GMO Pesticide Regulations in Hawaii Counties

On November 18, 2016, the Ninth Circuit issued five rulings rejecting three Hawaii counties’ attempts to regulate pesticides and genetically modified crops, finding that the regulations were preempted by state and federal laws.

Alika Atay et al. v. County of Maui et. al.

In Atay, citizens of Maui County had voted into law an ordinance that banned the planting and testing of genetically engineered (“GE”) plants.  Maui citizens were concerned about the effects of GE crops and pesticides, particularly in Maui, which “had become an attractive location for field tests” of genetically engineered crops and pesticides.   After the ordinance passed, a group of proponents of the ordinance filed suit, seeking declaratory relief to resolve the ordinance’s legality.  At the same time, opponents of the ordinance filed suit against Maui County to invalidate the ordinance.  After removal to federal court, the district court later granted the opponents’ motion for summary judgment.

The Ninth Circuit affirmed the district court’s order on summary judgment.  While the citizen groups had standing to bring the claim, the ordinance was expressly preempted by federal and state law.


Relying on Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), opponents of the ordinance argued that proponents lacked standing to defend the constitutionality of the ordinance because the relevant public officials had chosen not to.  The Ninth Circuit disagreed, finding that proponents could establish standing if they could do so independently of their status as ballot initiative proponents.  Unlike in Hollingsworth, appellants established an interest of their own: GE farming operations would threaten economic harm to their organic, non-GE farms.  Opponents had therefore established Article III standing.

Federal Preemption

The Ninth Circuit held that the ordinance was expressly preempted by the Plant Protection Act (“PPA”), to the extent the ordinance bans genetically engineered plants that the U.S. Animal and Plant Health Inspection Service (“APHIS”) regulates as plant pests.  As the court explained, the PPA includes an express preemption provision forbidding a state or local agency from regulating the movement in interstate commerce of a plant, if the regulation is intended to control or eradicate that plant, and if the APHIS has regulated the specific plant.  All conditions were met here.

State Preemption

The Ninth Circuit also held that, while the ban was not impliedly preempted by the PPA in its application to crops that APHIS had deregulated, it was impliedly preempted to these crops by Hawaii’s state statutory scheme for the regulation of potentially harmful plants.  This was because the ordinance addressed the same subject as Hawaii law—the regulation of potentially harmful plants and invasive species.  Moreover, the state’s statutory scheme made clear that the legislature intended for the State’s regulation of potentially harmful plants to be exclusive of supplemental local regulations.  As such, the ordinance was preempted by Hawaii state law.

Other Hawaii Cases

The Ninth Circuit also blocked similar attempts to regulate pesticides in Kauai, County and Hawaii County in Syngenta Seeds Inc. et al. v. County of Kauai et al., No. 14-16833, and Hawai’i Papaya Industry Assn. et al. v. County of Hawaii, No. 14-17538.

In Syngenta, the Ninth Circuit shut down Kauai County’s attempt to regulate pesticides and GE plants, applying the Hawaii Supreme Court’s “comprehensive statutory scheme” test to find that the ordinance was preempted by state law.   In Hawaii Papaya Industry, the court found that the ordinances were expressly preempted by federal law for the same reasons set forth in Atay.  The ordinances were also impliedly preempted by state law for the same reasons set forth in Atay and Syngenta.