Wednesday, July 1, 2015

The Maui GM Ordinance preemption ruling: A deeper look.

There are lots of fascinating tidbits in federal Distric Judge Susan Oki Mollway’s rejection of the Maui GMO ordinance.

And lots of things left undecided—things to give hope to both sides in the dispute. More on that later.

The essence of Mollway’s ruling was that Maui County can’t enforce the GMO ban, because it would intrude on the authority of both the federal and state governments, and that its civil fine provisions are clear violations of the county’s authority.

The judge refers to the federal Plant Protection Act, which prohibits bringing across state lines genetically modified plants that have been developed using known weeds. If genetically modified plants aren’t weeds, they are permitted, the act says. 

Since the Maui ordinance prohibits all GM plants, it prohibits ones that are permitted under federal law.

“If the ordinance conflicts with (the Plant Protection Act) then the ordinance’s conflicting provisions are preempted…,” the judge wrote.  “Maui’s ban of GE organisms run afoul of the Plant Protection Act and its regulations,” she wrote.

She goes on to say that the Maui ban violates the Plant Protection Act’s “purpose of setting a national standard governing the movement of plant pests and noxious weeds in interstate commerce based on sound science.”

On the issue state preemption, the judge said the state Constitution clearly delegates to the state Legislature the authority to protect agricultural lands, and that the state Legislature clearly delegates to the state Department of Agriculture “authority to oversee the introduction, propagation, inspection, destruction and control of plants.”

The opponents of the Maui bill argue that the Department of Agriculture has a clear and thorough regulatory system in place that preempts the Maui bill. The supporters of the Maui bill say it’s a mere “patchwork” of regulations. Mollway seemed satisfied that the state’s regulatory system is sufficient to prevent the county from stepping in.

On a third major point, Judge Mollway said the fines imposed under the Maui bill violate both the county Charter and state law--largely because the fines are way too high. “The civil fine provisions are unenforceable,” the judge wrote.

While the Maui GMO ban is clearly defeated, Judge Mollway left intriguing hints about possible additional arguments for both sides—arguments she said she didn’t need to address since the preemption and illegal fine issues were clear enough.

Supporters of the ban have cheered her insistence that her ruling is entirely on legal grounds, not on the inherent value or danger of genetic modification of food plants. “No portion of this ruling says anything about whether GE organisms are good or bad or about whether the court thinks the substance of the Ordinance would be beneficial to the county.”

Does this mean Mollway might have an opinion about whether GE organisms ought to be controlled? No clue. She's not saying.

The other side can draw strength from the fact that there were several arguments favorable to the seed industry that Mollway didn’t feel she needed to research.

Mollway said she did not even need to look into whether the EPA’s experimental use permits, which have been issued to Monsanto, also preempt the Maui bill. 

She said she didn’t need to get into whether state pesticide laws also preempt the ordinance. 

And she said she didn’t need to determine whether the Commerce Clause of the U.S. Constutition preempts the ordinance.

In a little dig at the anti-GM folks, Mollway criticized a tendency to assert things without bothering to back them up. The court ruled that you can’t refute a stated fact without evidence—meaning you can’t simply say it isn’t true. You need to show it isn’t true.

In one case, the GM opponents—the group calling itself SHAKA—even denied that Maui County is a political subdivision of the state. Mollway chided the group for violating court rules by “generally denying the facts without citation of any evidence and by including immaterial additional facts.”

On the same issue, Joan Conrow has an excellent article at her blog site. It looks at the issues from a slightly different perspective. Find it here. 

© Jan TenBruggencate 2015

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