In three different and critically important, decisions, the U.S. Ninth Circuit Court of Appeals has blown to smithereens the assault on genetically modified organism (GMO) agriculture that swept Hawaii and reached its high-water mark in 2013 and 2014.
It’s high time.
On Friday, the court upheld lower-court rulings by two different federal judges that invalidated anti-GMO legislation in Kauai, Hawaii and Maui counties that came about through ballot initiative (Maui) and misguided legislation enacted by county councils (Kauai and Hawaii). The Hawaii and Maui laws in question made cultivation of GMO crops illegal.
Kauai’s situation was a little different. As anti-GMO fervor swept the island in 2013, the late former Councilmember Tim Bynum and current (though very soon to be former as a result of his recent electoral defeat) Councilmember Gary Hooser saw personal political advantage in casting themselves as the heroes of the crusade. With sensitivity toward Bynum’s death last week, this analysis is not intended to disrespect his more comprehensive legacy.
At the time, fellow County Council members — led by then Chairman Jay Furfaro and Council- member JoAnn Yukimura — realized that the scientific basis for a county ban on GMO agriculture was nonexistent and the council voted to gut Bill 2491 (enacted as Ordinance 960) of nearly all GMO-specific provisions and transform it into a law about pesticide use albeit still anti-GMO legislation in disguise.
In their campaign to push through something anti-GMO as the two councilmembers perceived their political fortunes as linked to Kauai’s issue du jour, Hooser and, to a lesser degree, Bynum, staged numerous emotional and orchestrated hearings that succeeded in whipping anti-GMO hysteria into a stampede.
After the ordinance passed, it was revealed that County Attorney Mauna Kea Trask had authored a comprehensive legal analysis that predicted Ordinance 960 would be invalidated by courts because Hawaii counties simply lack legal authority — much less the administrative wherewithal in Kauai’s case — to regulate GMOs and pesticides.
The County Council received the legal opinion and ignored it. Mayor Bernard Carvalho Jr. had the courage to take one of the biggest political risks of his career by vetoing the bill. But Hooser and Bynum weren’t done. They engineered an override.
It is, however, critically important to realize how this played out politically. Bynum was voted off the council in 2014 with Hooser barely squeaking by in last place with enough votes to stay in office. This year, voters dumped Hooser. They also elected to the council Arthur Brun, an employee of Syngenta, one of the island’s four GMO seed companies. Yes, Kauai voters used the ballot to articulate their feelings on this divisive episode.
With Council Chairman Mel Rapozo retaining his position for 2017, the council now appears to have a solid majority of reasonable people who understand that pandering to the anti-GMO political crowd merely succeeded in driving Kauai apart. It was great theater, but it drew the council’s focus away from the really big-ticket items like development and planning, affordable housing, homelessness, congestion and ways to stimulate agriculture. Hopefully, we are now ready for change in how the council sets its priorities and responds to the true needs of constituents.
Hawaii and Maui counties tried to ban GMOs entirely. At least the Hawaii County bill had the transparency to call its provisions a ban. On Maui where the legislation came in the form of a ballot initiative, proponents tried to legitimize the bill by calling the ban a “moratorium.” It passed, albeit narrowly.
In the end, the Ninth Circuit on Friday drew several sweeping conclusions:
w Hawaii counties are precluded by federal law from regulating GMO agriculture because of the enactment of the federal Plant Protective Act in 2000. That federal law gave regulatory authority exclusively to the U.S. Animal and Plant Health Inspection Service. Creation of the Plant Protective Act also denied the anti-GMO proponents the ability to invoke a 1991 U.S. Supreme Court decision from Wisconsin that held that counties may enact their own regulatory schemes.
It is important to recognize that federal law understands the importance of agriculture in interstate commerce although it appears that many Hawaii politicians do not.
w Hawaii state law also precludes counties from regulating GMO crops.
w Hawaii state law precludes counties (meaning Kauai) from going their own way on regulating pesticides.
At the heart of the logic behind this is the need for farmers to face common and known regulatory standards. Allowing counties, cities and towns to construct their own regulatory systems from the ground up makes it impossible for farmers to do their business efficiently and feed the country.
The rulings don’t for a moment suggest that the court thinks the feds and the state of Hawaii have done their jobs well in accomplishing these tasks, because they have not. Particularly as regards pesticide enforcement on Kauai, relevant state and federal agencies have dropped the ball in far too many ways. If the three Hawaii counties had recognized that reality, they would have known that strengthening the existing regulatory system was far better than tilting at windmills through misguided local legislation.
Where do Friday’s rulings leave things? First, the Kauai County Council should put an end to this nonsense litigation by repealing Ordinance 960 to get it off the books. The council should never in a million years sanction and waste precious money taking this to the U.S. Supreme Court. This will only delay the inevitable and ensure that politicians have excuses to ignore real issues while pandering to fake ones.
Maui and Hawaii counties should also drop their cases, understanding that the appeals court decisions have one unstated but undeniable message: Hawaii should focus its efforts on restoring its ability to meet its own food needs by encouraging robust and diverse agriculture.
Despite the nastiness of the past four years, I remain convinced that this is what the vast majority of residents and voters have wanted all along.
Allan Parachini is a former journalist and PR executive. He is a Kilauea resident.