Jacob Garner is a JD Candidate, 2016, William S. Richardson School of Law; BA University of Washington.
Ian Wesley-Smith is a JD Candidate, 2016, William S. Richardson School of Law; BA Colorado State University.
Jacob Garner is a JD Candidate, 2016, William S. Richardson School of Law; BA University of Washington.
Ian Wesley-Smith is a JD Candidate, 2016, William S. Richardson School of Law; BA Colorado State University.
The Federalism debate has been an enduring feature of American political dialogue for centuries.1 Although implicating many of the same concerns, the parallel discussion on the role of local governments within states has received comparatively little attention. In recent years, however, with the emergence of new technologies in several key American industries, — the practice of hydraulic fracturing (“fracking”) by natural gas companies and the development of genetically modified organisms2 (“GMOs”) by agricultural corporations, for instance — the debate over the relationship between state and local governments has been thrust into the limelight.3 Invigorated by concerned constituencies and faced with inaction on the federal and state level, many local governments have sought to regulate the perceived dangers of GMOs.4 In the ensuing lawsuits, courts must consider difficult questions: To what extent do local governments have authority independent from the state to act? What is the proper relationship between state laws and local ordinances? At what point do they conflict, and what happens when they do? To resolve these issues courts must turn to the state preemption5 doctrine.
In 1994, the first genetically modified Flavr Savr tomato arrived in American grocery stores.6 In the decades since, public perception of GMOs has shifted sharply. Although initially lauded as a benign marvel of modern science,7 GMOs are now the center of a nationwide debate over food security and safety.8 On one side of the debate, scientists and large agriculture companies argue that GMOs pose no greater risk to human consumers than conventional food.9 On the other side, concerned citizens and activists worry that GMOs are little understood and may cause health problems, environmental harm, and new food allergens.10
The debate has spread from the political arena to the legal arena. Although most GMO litigation has involved false advertisement suits against companies that label GMO foods as “natural,”11 a handful of local governments have banned the propagation of GMOs within their jurisdictions.12 Parties that are adversely affected by these local GMO bans will often argue that state law preempts the offending local government action.13
This article will focus on the United States District Court for the District of Hawai‘i’s decision regarding state preemption of local GMO regulation in Syngenta Seeds, Inc. v. County of Kauai,14 and that decision’s reaffirmation in Hawai‘i Floriculture and Nursery Ass’n v. City of Hawai‘i.15 In Syngenta, the district court Magistrate Judge Barry M. Kurren ruled, inter alia, that the operative provisions of a Kauai County GMO bill were preempted by state law and barred from taking effect.16 The Syngenta decision was reaffirmed and clarified in Hawai‘i Floriculture, where the same judge, Judge Kurren, also invalidated a Hawai‘i County GMO bill.17 The GMO issue in Hawai‘i is ongoing, however, with new litigation arising from a GMO ordinance enacted in November 2014 by Maui County, and the first two decisions being appealed to the United States Court of Appeals for the Ninth Circuit.18
The Hawai‘i GMO decisions are important on at least two levels. First, the rise of GMOs in agriculture is a substantive topic that is controversial and divisive.19 Lurking beneath this emotional dialogue on GMOs, however, is an equally important national debate involving the proper relationship between state and local governments. This article is concerned with the second subject matter; the law of state preemption of local action is essential to understanding not only local control of GMOs, but local governments’ authority in general.20
Indeed, with local governments across the nation seeking to regulate both fracking and GMOs, the state preemption doctrine is likely to receive unprecedented attention.21 Concerns have been growing about fracking, and the process is still relatively foreign to the average layperson. The fracking process involves pumping fracturing fluids, usually a combination of sand, water, and chemical additives, into wells at high pressure to fracture underground bedrock in order to release natural gas and shale oil.22 Despite the energy benefits of fracking, the process has generated many “concerns about the impact of fracking on underground water resources, public health and other environmental effects in the locale of these shale gas extraction facilities.”23 The fact that the battle over which level of government has the power to regulate has spread to fracking is not surprising, given the rapid increase in fracking operations across the country. Major legal battles have been fought over local governments’ rights to regulate fracking, most notably in New York, Pennsylvania, West Virginia, and Colorado,24 though Ohio and Texas have also joined the fray.25 The preemption issues that will be discussed in this article are important not only to frame the Hawai‘i and nationwide GMO regulation debates, but also because they may affect fracking preemption issues across the United States.
This article attempts to situate the groundbreaking Syngenta decision within the broader debate over local authority and preemption. Part II provides a brief survey of state and local GMO regulation around the country. The national scope of the GMO debate means that additional state and local governments are likely to enter the fray. Part III puts the GMO debate in context by discussing local government authority and preemption generally. Part IV discusses the current preemption framework in Hawai‘i, in order to provide the necessary legal background for the recent preemption of local GMO ordinances within the state. Part V analyzes the Federal District Court for the District of Hawai‘i’s preemption decision in Syngenta and its reaffirmation in Hawai‘i Floriculture. Part V also explores the ongoing litigation and appeals to the Ninth Circuit. Finally, Part VI concludes that only by becoming familiar with the doctrines at play can judges, practitioners, and the public thoroughly engage with the deceptively simple question at the heart of the debate — what level of government should regulate GMOs and other issues of local concern?
There is currently a national movement towards the regulation of GMOs. This section summarizes relevant developments in GMO regulation at the state and local level in the United States.26 It first briefly discusses the federal regulatory framework and the emerging debate over GMO labeling. It then focuses on local ordinances that regulate the propagation of GMOs, with an emphasis on the preemption issues thereby created. The truly nationwide scope of the GMO controversy is likely to render state preemption of local ordinances an increasingly important legal topic.
The federal government regulates GMOs under the “Coordinated Framework”27 developed in 1986, which “create[d] a ‘comprehensive federal regulatory policy for ensuring the safety of biotechnology research and products.’ ”28 The practical effect of the coordinated frame- work approach is that GMOs and other biotechnologies are regulated under existing laws, rather than specific new legislation.29 Accordingly, the United States Food and Drug Administration, the United States Environmental Protection Agency, and the United States Department of Agriculture share responsibility for regulating different aspects of GMOs on the federal level.30 Critics of this approach contend that the coordinated framework is outdated, inadequate,31 and in need of reform.32
Due in part to the perceived inadequacy of federal regulations,33 the labeling of GMOs is an issue that has emerged on the state level throughout the United States. The general controversy concerns whether products that contain genetically modified ingredients should be required to display a distinctive informational label.34
In November 2014, Oregonians voted on a ballot initiative that would have required GMO labeling and signs posted next to GMO produce.35 The ballot measure ultimately lost by 812 votes — with more than 1.5 million cast — and attempts at challenging the result via lawsuit and recount were unsuccessful.36 The issue, however, is clearly not dead; five bills relating to GMOs were introduced in the 2015 Oregon legislative session.37
Oregon is not the only state in which citizens have tried and failed to pass initiatives or ballot measures that would require GMO labeling. Voters in Colorado resoundingly rejected a November 2014 statewide initiative regarding the labeling of GMOs.38 “Similar ballot questions in California and Washington [S]tate were rejected in 2012 and 2013, respectively.”39
Despite defeats in most states, proponents of GMO labeling have had at least one victory. In May 2014, Vermont enacted the first statewide GMO measure, which requires foods with over one percent of GMO ingredients to be labeled as such.40 On June 12, 2014, “[f]our national organizations whose members would be affected by Vermont’s new labeling law for genetically engineered foods filed a lawsuit . . . in federal court challenging the measure’s constitutionality.”41 The case, Grocery Manufacturers Ass’n v. Sorrell,42 alleges that the Vermont law is, among other things, preempted by federal laws including the Federal Food, Drug, and Cosmetic Act; the Nutrition Labeling and Education Act; and the Federal Meat Inspection Act.43 A hearing on the State’s motion to dismiss was heard in January 2015, the outcome of which will become the first federal court ruling on the constitutionality of state GMO labeling measures.44
The battle over GMO labeling appears likely to continue into the foreseeable future.45 Indeed, a recent, national study “conducted by the New York Times estimated that between 90 and 96 percent of the general public supported the identification of foods containing genetically modified ingredients.”46 Labeling measures were introduced in the 2015 legislative sessions in multiple states, including Indiana,47 Missouri,48 New York,49 Virginia,50 Rhode Island,51 and Arizona.52 The true magnitude of the anti-GMO grassroots movement, however, is evidenced by various lawsuits that have been filed in courts around the nation against companies that label their products as “natural” when they in fact contain GMO ingredients.53
The blossoming nationwide interest in the labeling of GMOs is important because it evidences a growing anti-GMO sentiment.54 In the absence of federal or state regulation, local governments across the country are likely to feel increased pressure to regulate GMOs. As the next section demonstrates, any such regulatory action by local government could potentially face state preemption challenges.
More central to a discussion of state preemption of local ordinances are the efforts of county and city governments within four states (California, Washington, Oregon, and Hawai‘i) to regulate the propagation of GMOs within their jurisdictions. Many of these local regulations are enacted in non-agricultural areas and are, therefore, largely symbolic in nature. Within the last year, however, agricultural counties in Hawai‘i and Oregon have generated significantly more controversy and litigation with their own GMO regulations.
1. GMO Regulation in California
In 2004, Mendocino County became the first local government in California to successfully implement a ban on the propagation of GMOs.55 The bill was “hypothetical” in the sense that no GMOs were cultivated within the county.56 Later in 2004, Marin County and Trinity County followed suit — both are non-agricultural — as did the City of Santa Cruz in 2006.57 More recently, in November 2014, Humboldt County voters enacted a measure that bans the “cultivation of genetically modified seed and crops,” and provides for fines and the destruction of any offending crops.58 Although Humboldt County intends to develop an enforcement plan, local parties do not expect litigation.59
To date, our research did not uncover evidence of any impending lawsuits over local government GMO regulation in California.60 This may be largely because most of the anti-GMO ordinances have been implemented in counties with little agricultural activity;61 by 2006, twelve agriculture-heavy California counties had passed largely symbolic resolutions voicing their support of GMOs.62
2. GMO Regulation in Washington
In November 2012, voters in Washington’s San Juan County overwhelmingly approved a ballot measure that bans the propagation of GMOs.63 It appears that the practical effect has been minimal because “the few plants that have been genetically modified are unlikely to be planted [in San Juan County].”64 To date, the San Juan ordinance has not generated enforcement actions.65
3. GMO Regulation in Oregon
Unlike the bans in Washington and California, GMO bans enacted by local governments in Oregon have already implicated preemption. In 2013, voters in Jackson County, Oregon gathered the required signatures to have Measure 15-119,66 which bans the propagation of GMOs within the county, placed on the May 2014 election ballot.67 County voters subsequently approved it.68 The measure,69 which has exceptions for research, health, and educational facilities, takes effect in June 2015, and requires farmers to remove GMO crops within twelve months.70 If farmers refuse to comply, “county officials are allowed to go into farmers’ fields and destroy the crops.”71
In 2013, after the Jackson County bill was certified to the ballot, the Oregon state legislature enacted Senate Bill 863,72 which expressly prohibits local governments from passing any ordinances regarding the cultivation of seeds or plants.73 The bill reserves “exclusive regulatory power over agricultural seed . . . and products of agricultural seed . . . to the state.”74 Senate Bill 863 includes language that specifically exempts the already existing Jackson County GMO ban.75
Despite the exemption in Bill 863, on November 18, 2014, two growers of GMO alfalfa, “[b]acked by a coalition of farming, agriculture and biotechnology organizations,” filed suit in Jackson County Circuit Court seeking to overturn the ordinance.76 The lawsuit is not an isolated or random act, but rather, part of an emerging national trend; the plaintiff ’s attorney referenced the Hawai‘i GMO preemption cases in discussions with the media.77
The plaintiffs in the Jackson County case, Schulz Family Farms LLC v. Jackson County,78 advance two claims. First, they argue that the county ordinance “is facially invalid and prohibited by the [state’s] Right to Farm Act.”79 Although the complaint does not specifically use the word preemption (probably because Jackson County is specifically exempted from the potentially preemptive state law), the claim is premised on the argument that “[t]he County has no lawful authority to adopt an ordinance that conflicts with the express terms of [Oregon’s] Right to Farm Act.”80 Alternatively, the plaintiffs argue that the ordinance effects an inverse condemnation, because it “effectively took possession of Schulz Family Farms’ property, and authorized others to enter onto and forcibly destroy its property.”81 The lawsuit is ongoing as of March 2015, with the judge recently granting permission to a number of parties, including two Portland-based environmental groups, to intervene in defense of the County.82 In the meantime, Jackson County will not enforce the ordinance until the legal issues are resolved.83
Despite apparent conflict with the preemption bill passed by the Oregon legislature in 2013, voters in Josephine County, Oregon (neighboring Jackson County) also approved a May 2014 ballot measure84 that bans the propagation of GMOs.85 “Officials in Josephine County remain uncertain whether they have the authority to enforce the local ban under Oregon’s strong home rule provisions, or if they are preempted by the state law.”86 In February 2014, before the ballot measure was adopted, the organization, GMO Free Josephine County, explained its reasons for proceeding with the ballot despite possible state preemption:
[P]roceeding with this ballot measure despite possible state preemption (SB 863) is a win-win scenario. Even if the state bill prevails, this ballot initiative can serve as an opportunity for the residents of Josephine County to assert their rights to self- governance, free from undue outside corporate influence and state or federal preemption of critical agricultural matters that affect our local food, farms and future.87
Josephine County is not the only Oregon county currently considering defying SB 863. An initiative that would ban the propagation of GMOs in Benton County has qualified to be placed before voters in May 2015.88 The Benton County measure is likely to face legal challenges; opponents went to court last year “to force rewording of the caption, question, and summary that will appear on the ballot.”89 Similarly, a Lane County anti-GMO group is seeking to have a similar initiative on the ballot in 2016, although they have already failed to get it approved five times.90
4. GMO Regulation in Hawai‘i
Because of Hawai‘i’s tropical location, agricultural companies perform vast amounts of research and seed development within the state. In fact, four of the world’s largest biotechnology companies operate on the island of Kauai alone, largely because the year-round growing climate is uniquely favorable to efficiently testing new GMO crops and pesticides.91 Many citizens and activists in Hawai‘i worry that these GMOs may have adverse environmental and health effects.92 Other local farmers, however, rely on GMOs for their livelihood, either because they work for the companies that test them,93 or because they grow crops that are genetically engineered to be resistant to disease.94
For these reasons, it is unsurprising that the national GMO debate has recently centered in Hawai‘i.95 Three out of the four county governments in Hawai‘i have attempted to regulate the cultivation of GMOs: Bill No. 113 by Hawai‘i County,96 Bill No. 2491 by Kauai County,97 and a Maui County ballot initiative that was approved by voters in November 2014.98 Both the Kauai County and Hawai‘i County bills have been invalidated by subsequent lawsuits,99 while the Maui initiative is the subject of two current lawsuits.100 This article discusses the decisions of the United States District Court for the District of Hawai‘i’s decisions with respect to the Kauai County and Hawai‘i County bills.
The legitimacy of a GMO regulation by local government necessarily depends on the power of the local government. Unlike state governments, which enjoy plenary powers under the United States Constitution limited only by the state constitutions, local governments are governments of grant.101 As such, any powers possessed by local governments must be delegated by the State.102 Traditionally, state legislatures have “conferred extensive powers on local governments through enabling legislation[s],” which are “legislative enactments that authorize specific local action.”103 Other local governments are granted power through constitutional home rule provisions, which delegate broad “general authority for the local government to exercise a degree of control over its form of government and local affairs, and at the same time provide limited protection to the local government from state legislative interference.”104 Whether a local government is empowered by home rule or merely statutory delegation is crucial to determining the extent to which that government can exercise authority independent of the State.
1. Statutory Delegation of Power
Traditionally, and contemporarily in states where home rule has not taken hold or in the case of counties in most states, local governments are granted power solely through statutory delegation by the state.105 Conflict frequently arises between state and local governments in the interpretation of these often vague grants of power.106 In response, state courts have routinely applied a strict construction rule to the statutory delegation of powers.107 This rule has come to be known as “Dillon’s Rule” after its author, Judge Dillon of the Iowa Supreme Court.108
According to Dillon’s Rule, municipal corporations109 possess only powers “granted in express words;” powers that are “necessarily or fairly implied in, or incident to, the powers expressly granted;” and those rights indispensable “to the declared objects and purposes of the corporation.”110 Furthermore, according to Dillon and many state courts, “any . . . reasonable doubt concerning the existence of power [is] to be resolved . . . against the corporation”111 Counties are even more limited under the rule, as they “possess little or no lawmaking authority, but [are] instead considered administrative arms of the state government.”112 Ultimately, the Dillon’s Rule era left very little control to the often understaffed and underprepared local governments of the late nineteenth century.113 Toward the end of the nineteenth century, proponents of local governance pushed for greater autonomy in local affairs and the constitutional home rule system was adopted in some states.114
2. Constitutional Home Rule
In their effort to overcome the limitations inherent in statutory grants of power under Dillon’s Rule, proponents of increased local governance aimed to include home rule provisions in their state constitutions.115 Missouri was the first state to adopt a municipal home rule provision,116 though “most states now authorize home rule for some, if not all, of their local governments.”117 Over time, home rule charters changed form, leading to an important difference between imperio home rule and legislative118 home rule.
a. Imperio Home Rule
The original form of constitutional home rule “grants a defined scope of power to local governments,” which is generally limited to areas of local concern.119 In practice, a local government utilizing its imperio home rule powers is protected from state preemption in matters of local concern.120 Accordingly, many observers dubbed these home rule regimes “imperium in imperio,” or a “state within a state,” in reference to exclusive areas of authority for the state and the local governments with little overlap.121
Although the initial supporters of imperio home rule clauses intended to free local governments from the yoke of judicial interpretation, state courts maintained an important influence over local power because the courts had the power to interpret what constituted “local concern” under the charter.122 Over time, supporters of local control became frustrated with state court judges’ narrow interpretations of “local” and the subsequent limitations on local authority.123
b. Legislative Home Rule
More recently, a form of home rule, dubbed legislative home rule, has been developed to combat the growing frustration with judicially imposed limitations on local government.124 Under legislative home rule, the state constitution “grants local governments all powers the legislature is capable of delegating, but the legislature is authorized to with- draw or limit home rule powers by statute.”125 This is the broadest means of empowering local government. However, despite the reformers’ intention to “substitute the legislature for the judiciary as the primary adjudicator of the extent of home rule powers,”126 judicial interpretation has remained important under legislative home rule because “courts must decide whether state legislation has limited the exercise of home rule powers.”127
3. Local Government Power in Hawai‘i
The four local county governments in Hawai‘i have an extremely weak form of home rule provided constitutionally, which can be described as “defined unless limited.”128 One scholar, having noted this weak form of home rule in Hawai‘i, dubbed the constitutional provision a “permissive provision,” which “merely authorizes home rule and empowers the state legislature to grant it at its discretion.”129
A close look at the text of Hawai‘i’s constitution reinforces this interpretation. According to Article VIII of the Hawai‘i Constitution, “[e]ach political subdivision shall have and exercise such powers as shall be conferred under general laws.”130 While this language appears on its face to indicate a grant of legislative home rule, language in the succeeding part, which requires local governments to create a charter for self-government, indicates the weakness of local governments in Hawai‘i: “Charter provisions with respect to a political subdivision’s executive, legislative and administrative structure and organization shall be superior to statutory provisions, subject to the authority of the legislature to enact general laws allocating and reallocating powers and functions.”131 The effect of this limitation has been that, while counties are free to act as they wish in areas of local “executive, legislative and administrative structure and organization,”132 the State may limit that power however it sees fit.133
The true weakness of local government power is illuminated in a discussion of preemption. In other words, the extent of a local government’s authority to legislate is often best defined by its relationship to state authority — a relationship that is thrown into sharp relief by application of the state preemption doctrine. As Mandelker explains in his text on state and local government, “[w]hether a local government exercises power through a statutory or home rule grant, a state legislature may preempt the exercise of local power by adopting legislation covering an area of concern also covered by a local ordinance. Preemption may occur even though a local government enjoys constitutional home rule.”134
Due to the murky nature of local authority, preemption conflicts arise consistently throughout the United States.135 Enabling legislation for local power is rarely clear, as evidenced in the examination, supra, of Hawai‘i’s home rule provisions, and local governments “often adopt regulations and requirements that supplement” state statutes.136 Furthermore, state legislation that purports to preempt local ordinances is rarely clear in its intent, and usually requires judicial interpretation.137
Courts across the nation employ a wide variety of preemption tests, so the exact legal standard will vary from jurisdiction to jurisdiction.138 In general, however, most states model their preemption test after the federal preemption approach.139 First, many courts will examine whether local ordinances are expressly or explicitly preempted by state legislation containing specific language intended to prevent local government from regulating in the relevant area.140 Second, in the absence of express preemption, almost every state recognizes some form of “implied preemption.”141
Most states further subdivide implied preemption into two categories: implied preemption by occupation of the field, and implied preemption by conflict.142 Implied preemption by occupation of the field normally involves an analysis into whether the state legislature intended to “comprehensively regulate a particular field so that there is no room for [local] regulation of that field.”143 Courts subscribing to the doctrine of implied preemption by conflict, on the other hand, will examine “whether a local ordinance substantially interferes with state law or a state’s constitutional responsibilities.”144 Whether the local ordinance interferes or conflicts with state law is often determined by application of some variation of a “prohibit/ permit” test.145
In sum, the legitimacy of an action by local government can only be understood in the context of the authority it is granted by the state, and the particulars of the state’s preemption doctrine. For example, the Hawai‘i Supreme Court has interpreted county power to regulate in the face of state legislation, which necessarily implicates the preemption doctrine.146 In Hawai‘i, cases generally discuss whether the county has the authority to regulate in the relevant area — often focusing on Hawai‘i’s limited home rule powers — before moving on to the preemption discussion.147 The next section of this paper discusses the preemption framework that the Hawai‘i Supreme Court has developed over the last forty years.
Prior to developing its current analytical framework, the Supreme Court of Hawai‘i dealt with preemption in only three cases in over thirty years: In re Anamizu;148 Waikiki Resort Hotel v. City and County. Of Honolulu;149 and Citizens Utilities Co., Kauai Electric Division v. County of Kauai.150 Waikiki Resort introduced a “conflict preemption” test151 from other jurisdictions, which asks whether the ordinance “prohibits what the statute permits or permits what the statute prohibits.”152 Anamizu and Citizens Utilities analyzed Haw. Rev. Stat. § 70-105153 and its successor Haw. Rev. Stat. § 46-1.5(13),154 respectively, to derive a comprehensive statutory scheme test that holds, “a municipal ordinance, which covers the same subject matter embraced within a [s]tate statute is invalid if the statute discloses an express or implied intent that the same shall be exclusive, or uniform in application throughout the state.”155
Richardson v. City and County of Honolulu156 is the premier preemption case in Hawai‘i, and continues to provide the controlling analytical framework for preemption cases in Hawai‘i.157 In Hawai‘i in the 1980s, many large landowners had “adopted a pattern of leasing their land for long terms rather than selling it,” often to developers who built condominiums that were then “sold subject to the ground lease.”158 In 1991, the City and County of Honolulu responded to this practice by enacting Ordinance 91-95, “ostensibly to break up [this] concentration of land ownership that had led to ‘artificial inflation’ and undersupply in the market for fee simple residential condominium land.”159 Ordinance 91-95 authorized the county to use its powers of eminent do- main to condemn condominium property for the purpose of transferring fee simple interest from the lessor to the lessee.160
The trustees of Bishop Estate, the fee simple owner of most of the Honolulu condominium properties targeted by the ordinance,161 argued that state law preempted the ordinance.162 The court found “that the purely state law preemption issue would be best answered in the first instance by the Hawai‘i Supreme Court.”163 Accordingly, the court certified the preemption question to the Supreme Court of Hawai‘i.164
The Supreme Court of Hawai‘i constructed its Richardson preemption test by synthesizing its three prior preemption cases with general principles of preemption law gleaned from other jurisdictions and Hawai‘i’s statutory structure and constitution.165 The court used Haw. Rev. Stat. § 46-1.5(13) as the cornerstone of its preemption doctrine: “a municipal ordinance may be preempted pursuant to [Haw. Rev. Stat.] § 46-1.5(13) if, (1) it covers the same subject matter embraced within a comprehensive state statutory scheme disclosing an express or implied intent to be exclusive and uniform throughout the state or (2) it conflicts with state law.”166 Accordingly, the Richardson doctrine, in its simplest form, provides litigants with two methods of proving that an ordinance is preempted pursuant to Haw. Rev. Stat. § 46-1.5(13).167
1. State Law Covers the Same Subject & Is Exclusive & Uniform
First, under Richardson, a municipal ordinance may be preempted pursuant to Haw. Rev. Stat. § 46–1.5(13) if it “covers the same subject matter embraced within a comprehensive state statutory scheme disclosing an express or implied intent to be exclusive and uniform throughout the state.”168 This first path to preemption under Richardson is simply the comprehensive statutory scheme test from Anamizu and Citizens Utilities.169
The plaintiffs in Richardson argued that Ordinance 91-95 was preempted by three different state statutory schemes.170 The court distinguished Anamizu and Citizens Utilities from the circumstances in Richardson.171 It found that the preempting state laws in both prior cases had “governed a substantive ‘universe,’ . . . whereas the relevant county ordinance[s] addressed only a ‘galaxy’ thereof ” by imposing additional “qualifying regulations.”172 By contrast, the court characterized Ordinance 91-95 and the state statutes at issue in Richardson as regulating “entirely distinct galaxies . . . [that] impose nothing that is ‘additional’ to the applicable state law.”173 With that distinction established, the court analyzed each state law under the comprehensive statutory scheme test, and determined that none preempted Ordinance 91-95.174
The Richardson court determined that none of the state laws preempted Ordinance 91-95 under the comprehensive statutory scheme test primarily by focusing on two elements: whether the laws and ordinances covered the same subject matter,175 and whether the state laws disclosed an intent to be the exclusive legislation applicable.176 The court apparently gave a narrow interpretation to the comprehensive statutory scheme test, holding that various statutory schemes covered by the ordinance — eminent domain, involuntary lease-to-fee residential conversion, and condominiums — did not preempt Ordinance 91-95 because none of them covered the exact subject matter that the ordinance did.177 Similarly, none of these statutory schemes was interpreted as implying a legislative intent to be exclusive.178
2. Conflicts with State Laws
Second, Richardson allows an ordinance to be preempted pursuant to Haw. Rev. Stat. § 46-1.5(13) if it “conflicts with state law.”179 Additionally, “if an ordinance truly conflicts with [a state statutory scheme] that is of statewide concern” in a manner that results in preemption, that ordinance violates the supremacy clause of the Hawai‘i Constitution.180 Therefore, county ordinances that conflict with state law run afoul of both Haw. Rev. Stat. § 46-1.5(13) and the Hawai‘i Constitution.
The court ultimately adopted general principles governing preemption and the criteria for determining whether a conflict occurs from the California case of Sherwin-Williams Co. v. City of Los Angeles.181 Although the plaintiffs advanced various “preemption-by-conflict” arguments,182 the court evaluated all of them by citing to Sherwin-Williams and holding “that Ordinance 91–95 conflicts with state law [if] it (1) ‘enters an area fully occupied’ thereby and (2) is ‘duplicative’ (i.e., ‘coextensive’) with respect thereto.”183 The Richardson court essentially adapted a “dual analysis” from Sherwin-Williams to determine whether preemption-by-conflict occurs under Haw. Rev. Stat. § 46-1.5(13) and the Hawai‘i Constitution.184
The Hawai‘i preemption doctrine outlined above has most recently come to a head in the context of GMOs. The following section of the article analyzes the federal district court’s application of the Richardson preemption doctrine in Syngenta and Hawai‘i Floriculture.
In response to citizen concerns, the Kauai County Council passed Ordinance 960185 “to establish provisions to inform . . . and protect the public from any direct, indirect, or cumulative negative impacts on the health and the natural environment of the people and place of the County.”186 The ordinance contains four operative provisions that affect the use of pesticides and GMOs.187 First, the ordinance mandates “disclosure of the use of ‘restricted use pesticides’” (‘RUP’) and the possession of GMOs by “commercial agricultural entities” (‘CAE’).”188 The pesticide disclosure provision requires disclosure in the form of (1) warning signs for worker protection before, during, and after the application of pesticides; (2) “weekly ‘Good Neighbor’ notices . . . sent to any ‘requesting’ persons within” a 1,500 foot radius of the application property; and (3) “weekly post-application public disclosure reports regarding the actual application of pesticides during the prior week.”189 The GMO notification provision requires “annual public reports to the County Office of Economic Development (‘OED’) disclosing the growing of GMOs.”190
Second, Ordinance 960 requires certain CAEs to establish buffer zones ranging from 75 to 500 feet between crops that are treated with RUPs and surrounding properties.191 Third, Ordinance 960 requires Kauai County to complete an Environmental and Public Health Impact Study to address “environmental and public health questions related to large-scale commercial agricultural entities utilizing pesticides and genetically modified organisms.”192
Finally, the ordinance requires “any person, firm, or corporation violating the provisions of the Ordinance shall be assessed a civil fine of $10,000-$25,000 per day, per violation.”193 Furthermore, in addition to this civil penalty, Ordinance 960 provides for violation to be a misdemeanor subject to punishment of not more than $2000 in fines and one year in prison, for each day the violation continues.194
As noted above, Hawai‘i courts that discuss preemption typically first tackle the question of whether the county possesses the authority to regulate in the area at issue.195 In Syngenta, the court held that Kauai County has the authority to regulate agricultural activities.196 While the court acknowledged the plaintiffs’ assertion that the Hawai‘i Constitution declares agriculture to be of statewide concern, the court cited to Richardson in holding, “[t]he fact that the state [c]onstitution declares agriculture to be of statewide concern, does not by itself preclude all county regulation in the entire field of agriculture, or trigger a requirement that the State must expressly grant the counties specific authority in the area of agriculture.”197
The plaintiffs’ argument that Kauai lacked the requisite authority to regulate agriculture was only the first of three claims. As the court noted, the “conclusion that the County has some authority in the area of agriculture is . . . only the first step in the required analysis of County police power.”198 Next, the court engaged in a Richardson preemption analysis with regards to both the pesticide and GMO regulations in Ordinance 960.
1. Pesticide Regulation
The plaintiffs argued that state law preempted the pesticide provisions of Ordinance 960 under a preemption-by-conflict analysis.199 The Syngenta court reiterated Richardson’s holding that ordinances are preempted pursuant to Haw. Rev. Stat. § 46-1.5(13) if they “conflict with the intent of a state statute.”200 Rather than engaging in the Sherwin-Williams analysis utilized by Richardson, however, the court adopted the Waikiki-Hotel preemption-by-conflict test: “A test to determine whether an ordinance conflicts with a statute is whether it prohibits what the statute permits or permits what the statute prohibits.”201
First, plaintiffs argued that “the pesticide notification requirements of [the ordinance] directly conflict[ed] with [state pesticide disclosure laws]” because the ordinance “lack[ed] the protections” and exceptions provided for by the state law.202 The court noted that plaintiffs were unable to identify any specific information that would be disclosed under Ordinance 960 in violation of state law.203 Accordingly, the court “[could not] find that Ordinance 960 prohibit[ed] what [state law] permit[ted] or permit[ted] what the statute prohibit[ted].”204 Second, plaintiffs asserted that the ordinance was enacted pursuant to Kauai County’s power to regulate nuisances, and so conflicted with Hawai‘i’s Right to Farm Act.”205 Again, the court found no preemption-by-conflict, because the Right to Farm Act was substantively a “burden shifting” law, rather than one meant to “categorically preclude nuisance lawsuits.”206 Finding no direct conflict, the court next analyzed Ordinance 960 under the Anamizu comprehensive statutory scheme test, holding that the “ ‘critical determination to be made’ is whether the statutory scheme at issue indicates a legislative intention, either express or implied, to be exclusive and uniform throughout the state.”207
Unlike most prior cases,208 the Syngenta court specified the order of the elements in the test: “[T]he first step of this test is to examine whether the local ordinance in question covers the same subject matter embraced by state law. . . . Only upon a finding of overlapping subject matter would a court then proceed to analyze the uniformity and exclusivity of a statutory scheme.”209 The court found that the pesticide provisions of Ordinance 960 regulated the two subject matters of “record keeping and reporting, and areas of permissible planting and associated pesticide use,”210 and analyzed each accordingly.
First, Ordinance 960 imposed “various pre- and post-application reporting requirements,” including signs, good neighbor notices, and weekly disclosures.211 The court found that Haw. Rev. Stat. § 149A-33(3) gave the State Department of Agriculture (“DOA”) the authority to establish “record keeping requirements for pesticide use,” while Haw. Rev. Stat. § 149A-31.2 provided that the DOA “shall publish on its website the public information contained in all restricted use pesticide records, reports, or forms.”212 The DOA administrative rules in Haw. Code R. § 4-66 et seq.213 provided for pesticide labeling214 and detailed requirements for pesticide record keeping to be displayed at the primary place of business for two years.215 Accordingly, the pesticide record keeping and disclosure provisions of Ordinance 960 covered the same subject matter as state laws.216
Second, Ordinance 960 defined areas of permissible planting and pesticide use by establishing buffer zones and mandating an impact study.217 The court found that Haw. Rev. Stat. § 149A-32.5 gave a state committee the authority to “suspend, cancel, or restrict the use of certain pesticides . . . when the usage is determined to have unreasonable adverse effects on the environment,”218 and Haw. Rev. Stat. § 149A-33219 gave the DOA rulemaking authority over “conditions for the application of pesticides by aircraft” and establishing standards regarding what constitutes “unreasonable adverse effects on the environment.”220 Thus, the buffer provisions of Ordinance 960 also covered the same subject matter as the state statutory scheme.
Having established the overlapping subject matters of the ordinance and the state statutory scheme, the court found that the ordinance was preempted because the statutory scheme evidenced a legislative intent to be uniform and exclusive.221 “[T]he state regulatory framework creates a global or comprehensive mechanism for regulating pesticide licensing, sales, use, and enforcement within the State,” a framework from which the court noted “counties and local governments are wholly absent.”222 Thus, Ordinance 960 was preempted because the legislature intended to grant the State “exclusive authority over pesticide regulation.”223
2. GMO Regulation
The Syngenta court began its discussion of state preemption of the GMO regulations by pointing out that, as with pesticide regulation, “the court must inquire ‘whether the statutory scheme at issue indicates a legislative intention, either express or implied, to be exclusive and uniform throughout the state.’ ”224 In contrast to the court’s discussion of the pesticide regulation preemption, wherein the first step to a comprehensive statutory scheme test is “to examine whether the local ordinance in question covers the same subject matter embraced by state law or regulations,”225 in its analysis of the GMO provisions, the court proceeded immediately to “analyze the uniformity and exclusivity of [the] statutory scheme.”226
Rather than focusing on specific statutes that covered the subject matter of GMOs, the court focused on the statutory scheme that “set out the [DOA’s] rulemaking authority.”227 More specifically, the court pointed out that, under this scheme, “[t]he DOA is vested with rulemaking authority concerning, in relevant part, the introduction of plants into the State, the quarantine or exclusion of plants at any time or place within the state, and the manner in which agricultural research activities may be undertaken.”228 The court explained that, although the existing statutes did not explicitly speak to the GMO reporting requirements present in Ordinance 960, “they d[id] set out the State’s role in identifying potentially harmful plants, which is precisely what [Ordinance 960’s] reporting requirement is premised upon.”229 In sum, the court found,
in the context of [A]rt. XI § 3 [of the Hawai‘i Constitution], the comprehensive administrative system established under the DOA, and the complete absence of reference to counties or local government therein evidence the legislature’s intent that the state scheme for the regulation of specific potentially harmful plants be both uniform and exclusive preempting the imposition of local regulations on this specific issue.230
As such, the court found that the GMO reporting requirements in Ordinance 960 were “preempted by state law and . . . barred from taking effect.”231
The same federal district court reaffirmed the Syngenta decision in Hawai‘i Floriculture and Nursery Ass’n v. County of Hawai‘i.232 Hawai‘i Floriculture concerned Hawai‘i County’s Ordinance 13-121, which provided that “[n]o person shall knowingly engage in the open air cultivation, propagation, development, or testing of genetically engineered crops or plants,”233 a prohibition “intended to prevent the transfer and uncontrolled spread of genetically engineered organisms on to private property, public lands, and waterways.”234 Ordinance 13-121 went further than the disclosure requirements of Kauai Ordinance 960 by creating an outright ban on the propagation of GMOs,235 although it did exempt “specific locations where genetically engineered crops . . . have been customarily . . . propagated” as long as those locations were registered.236
In Hawai‘i Floriculture, the federal district court defended and further clarified its reasoning in Syngenta. The court again applied the comprehensive statutory scheme preemption test from Richardson and found that state law preempted Ordinance 13-121.237 Most importantly, the court further explained its finding that ordinances regulating GMOs covered the same subject matter as a state comprehensive statutory scheme.238 Amici curiae submitted on behalf of Hawai‘i County argued that state laws did not cover the same subject matter as the county ordinances because the “state legislation does ‘not specifically regulate genetically modified crops,’ ”239 and further argued that the state laws and regulations could not “form a comprehensive statutory scheme because the [various state] statutes were enacted at different times.”240
The court responded by clearly outlining the comprehensive statutory scheme that covered the same subject matter as the county GMO ordinances. First, “Article XI Section 3 of the Hawaii State Constitution directs the state to ‘conserve and protect agricultural lands,’ and vests the state legislature with the authority to create standards and criteria to accomplish that mission.”241 Second, the state legislature fulfilled its mandate by tasking the DOA with “developing and implementing agricultural policy concerning the introduction, propagation, inspection, destruction, and control of plants,”242 exemplified by various statutes, respectively, granting the DOA the authority to inspect and destroy harmful seeds, regulate “noxious weeds,” and designate “restricted plants.”243 In turn, the DOA adopted detailed regulations to carry out each of these statutory grants of power.244 The court found that “[t]he forgoing statutes and regulations are part of a comprehensive statewide framework that addresses the precise environmental impacts” that the GMO ordinances of Hawai‘i and Kauai Counties were intended to cure.245 Thus, although no state statute explicitly addressed GMOs, the statutory scheme nonetheless covered the same subject matter.
The federal district court appears to have faithfully applied the preemption principles from Richardson in Syngenta, despite reaching a different result. In Richardson, the state comprehensive scheme governing eminent domain did not preempt the Honolulu ordinance because the counties played a role in the state statutory scheme.246 The state scheme granted the power of eminent domain for public uses to both the state and the counties, prescribed the procedures to be followed, and defined certain acceptable public uses at the state level.247 The Richardson court found that this scheme did not evidence the state legislature’s intent to preclude the counties from defining their own public uses, and so did not preempt the Honolulu ordinance.248
On the other hand, in Syngenta, the federal district court found that the relevant state statutory scheme preempted the Kauai ordinance.249 As discussed above, the Hawai‘i Constitution declared agriculture to be of statewide concern, the state legislature vested control over agriculture-related harms such as noxious weeds and pesticides in the DOA, and the DOA enacted detailed regulations.250 The court noted a stark absence of the counties in this framework, and concluded that the state legislature did not intend the counties to have the power to regulate in the area of GMOs and pesticides.251 Although there is always room for disagreement in a legal area as oblique as that surrounding state preemption, the Syngenta court does not appear to have misapplied the Richardson preemption doctrine.
Despite these two victories for GMO supporters in Hawai‘i, the debate in the state over GMO regulation and preemption is hardly over. Currently, both Syngenta and Hawai‘i Floriculture have been appealed to the United States Court of Appeals for the Ninth Circuit as Syngenta Seeds, Inc. v. County of Kauai252 and Hawai‘i Papaya Industry Ass’n v. County of Hawai‘i,253 respectively.254 Early in February 2015, the Hawai‘i County Council voted to allow attorneys from national anti- GMO advocacy groups Earthjustice and the Center for Food Safety to assist in the county’s appeal.255 Kauai County has similarly allowed nonprofit organizations to intervene in its appeal, bringing growing national coverage to the case.256
In addition to the pending appeals regarding the Hawai‘i County and Kauai County GMO bills, two opposing cases, one in state court and one in federal court, have been filed regarding Maui County’s new GMO regulation.257 These cases arose from the contentious Maui County GMO moratorium initiative that voters approved on November 4, 2014, in order to halt GMO operations and practices in the county.258 The Maui ordinance imposed a moratorium rather than a permanent ban, pending a county investigation of possible negative health effects associated with GMOs.259
Following the passage of the Maui initiative, and in the face of impending litigation from GMO supporters,260 several anti-GMO Maui County residents filed suit in Hawai‘i state court against Maui County, Monsanto, and Dow AgroSciences in an apparent bid to have what are seen as more sympathetic courts decide the state preemption issue.261 Monsanto and Dow have since filed their lawsuit, Robert Ito Farm Inc., v. County of Maui,262 in the same federal court that invalidated the Kauai County ordinance.263 In the meantime, Maui County and the large agricultural companies signed a stipulation delaying enforcement until April pending the outcome of litigation.264 A federal judge will hear the defendant’s motion to dismiss the case on March 10, 2015.265 Given the legal precedents, Maui County’s GMO moratorium is probably slated for a fate similar to that of its neighbor islands’ regulations.
The GMO debate is far from over in Hawai‘i, and the nationwide debate on state preemption has just begun. Although both the Kauai County and Hawai‘i County bills have been preempted, both decisions are being appealed to the Ninth Circuit.266 The Maui County initiative is the subject of two opposing lawsuits, one in federal court seeking preemption and one in state court seeking to compel its enforcement.267 Elsewhere in the United States, counties in Oregon, California, and Washington have also banned propagation, and at least one of them is now facing a preemption lawsuit.268 Additionally, the analogous issue of fracking is increasingly pitting local governments against states in a battle involving authority and preemption.269
In the previous part, the authors of this article concluded that the court in Syngenta did not obviously misapply Hawai‘i’s preemption doctrine. As things stand in Hawai‘i, the counties exercise limited power through an extremely weak home rule, and subject to the strict Richardson preemption doctrine. Under this framework, it is no surprise that the GMO ordinances were preempted in Syngenta and Hawai‘i Floriculture.
The Hawai‘i GMO decisions are important because they set precedent in an emerging area of law.270 However, they also highlight the broader question of which level of government should control issues of local concern such as GMOs; the exponential growth of anti- GMO sentiment around the nation is likely to result in an elevated focus on preemption and the role of local government.271