April 01, 2015 Urban Lawyer

State Preemption of Local GMO Regulation: An Analysis of Syngenta Seeds, Inc. v. County of Kauai

by Jacob Garner & Ian Wesley-Smith

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.

I.  Introduction

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?

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