9th Circuit Holds Hawaii County Ordinances Regulating Genetically-Engineered Plants and Cultivation Are Preempted

On November 18, the U.S. Court of Appeals for the Ninth Circuit issued three unanimous decisions affirming the U.S. District Court for the District of Hawaii’s rulings that three local county ordinances—enacted by the counties of Maui, Kauai and Hawaii—are preempted by the laws of the State of Hawaii or the federal Plant Protection Act (PPA), 7 U.S.C. § 7756(b). The ordinances purported to regulate pesticides and genetically engineered plants or even banning the cultivation and testing of genetically-engineered plants. The published opinions are Atay, et al., v. County of Maui, et al., and Syngenta Seeds, Inc., et al., v. County of Kauai. The unpublished opinion is Hawai’i Papaya Industry Assoc., et al., v. County of Hawaii.

The Maui County ordinance was the result of a citizens’ initiative, and the Kauai ordinance was enacted in the regular course of county business. In the Syngenta Seeds case, the Ninth Circuit ruled that the “field preemption” test devised by the Hawaii Supreme Court required the rejection of Kauai County ordinance. In the Atay case, the Ninth Circuit concluded that the provisions of the Maui County ordinance were preempted by both the PPA and impliedly by the laws of the State of Hawaii.

In the third case, the Ninth Circuit held that a recently-enacted ordinance of the County of Hawaii which bans the “open air testing of genetically engineered organisms of any kind” and “open air cultivation, propagation, development or testing of genetically engineered crops of plants” was preempted by federal and state law.