A federal judge expects to decide by the end of the month whether Maui County’s ordinance banning genetically modified crops is trumped by state and federal laws.
"If there is a conflict (with state and federal laws), then the county ordinance must fall," U.S. District Chief Judge Susan Oki Mollway said Monday in a hearing on whether Maui County’s ban on GMOs is legal.
Maui voters approved an initiative in November to impose a moratorium on the cultivation of genetically engineered crops until scientific studies are conducted on their safety and benefits.
Seed crop producers Monsanto Co., Maui businesses, farmers, individuals and the Valley Isle’s Hawaii Farm Bureau Federation immediately sued to block the county’s enforcement of the ordinance.
On Monday, Michael Carroll, a lawyer for the SHAKA Movement, the group that put the GMO initiative on the ballot, told Mollway that the county ordinance does not conflict with state or federal laws that regulate agriculture. He said the Hawaii Constitution gives the county the right to protect the environment and that state law gives it police powers to enforce the Constitution.
He said the ordinance further gives the county the ability to regulate and protect against harms related to GMO activities.
"We believe it’s not being regulated or protected by the federal or state governments," Carroll said.
Margery Bronster, a lawyer for the parties that are suing to block the ordinance, told Mollway that only state governments can regulate activities the federal government has chosen not to address. County governments can regulate activities that the state specifically authorizes it to, but in this case, she said, the state has not authorized the county to regulate GMOs.
"We believe that both federal and state law do not allow a county, and certainly not the initiative process, to regulate in the manner in which this was done," she said.
Bronster was one of the lawyers who argued on behalf of opponents to Kauai County and Hawaii County ordinances on GMOs.
The Kauai ordinance sought to regulate the use of pesticides used by GMO seed crop producers. The Hawaii County ordinance sought to ban the open-air cultivation of GMO crops. Another federal judge ruled last year that the two ordinances were pre-empted by state and federal law.
"And we believe that this should follow," Bronster said.
Carroll said the GMO landscape has changed significantly since U.S. Magistrate Judge Barry Kurren invalidated the two counties’ GMO ordinances.
"There have been other studies that have been published linking GMO activities with harmful effects," Carroll said.
Mollway said she is not deciding the merits of the ordinance, but whether state and federal law take precedence. "The heart of the issues that drove the initiative is not before me," she said.
She said she intends to issue a decision by the end of the month.
Mollway is considering two separate lawsuits.
The first, filed by the seed companies and their allies, challenges a Maui County law created when voters passed a ballot initiative last year. The second, filed by five citizens who sponsored the ballot initiative, seeks to compel the county to enforce the ordinance.
Mark Sheehan, one of the five citizens, was disappointed that Mollway’s questions focused on whether state and federal law pre-empt county law.
"That the people might have a right to health was of no concern," said Sheehan, a member of the Sustainable Hawaiian Agriculture for the Keiki and the Aina Movement, or SHAKA.
Monsanto has two farms in Maui County, one on Maui and one on Molokai. Agrigenetics, which does business as Mycogen Seeds, has a farm on Molokai.
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The Associated Press contributed to this report.
