ANALYSIS: GMO Ban a Poorly-Crafted Invitation to Lawsuits

After multiple drafts and countless exhaustive hours of testimony that increasingly resembled scenes from AMC’s “The Walking Dead,” the Hawai`i County Council voted 6-3 on Thursday to approve a ban on all new open-air GMO crops.

Under the bill, existing growers will be allowed a few exemptions, while violators will face hefty fines.

Whatever the merits or threats posed by GMO technology, the final draft of Bill 113, which was introduced by Waimea councilwoman Margaret Wille, happens to be poorly written, and likely to face legal challenges.

Once the mayor receives the bill from the council, he will have 10 working days to veto it. If Kenoi seeks to protect Big Island residents from expensive legal costs, he will waste no time vetoing it.

Many columns and letters have been written about the bill’s potentially harmful impacts on the agricultural industry, and conversely, the worries over GMO technology’s impacts on the environment.

They represent valid concerns, but here we’ll be focusing on the potential legal problems inherent in Draft 3 of Bill 113, as it was passed yesterday.

Can the County Be “Trusteed”?

When it comes to powers of regulation, the federal government is delegated authority over certain matters via the constitution. Whatever power Uncle Sam hasn’t claimed for itself passes on to the states, who then may expressly grant powers of regulation to their individual counties (assuming they in fact intend for them to get all regulatory on their own).

Take the regulation of agricultural activities for example. We have the US Department of Agriculture, the state Department of Agriculture, and at the county level, pretty much nothing. Likewise for the Departments of Health, Education, and so on.

The notion that the county of Hawaii has the authority to regulate agriculture is a questionable one.

Nevertheless, councilwoman Wille’s bill cheerfully proclaims that “the council finds that policies relating to agricultural practices are most appropriate to be determined by each county…”

Wille cites Section 1, Article XI of the Hawai`i State Constitution, as well as a similar passage from the Hawai`i County Charter as providing the county authority to regulate agriculture.

While the state and county documents cited both lay claim to public natural resources as being “held in trust” for the benefit of the people, Article XI of the state constitution specifically states (in section 3) that in fact the state government,

“Shall conserve and protect agricultural lands, promote diversified agriculture, increase agricultural self-sufficiency…”, with the state legislature providing “standards and criteria to accomplish the foregoing.”

So, apart from banning GMOs, Wille may have actually managed to infringe on the state’s powers of regulation.

They’ll Know What you Did Last Summer

Bill 113’s questionable legal standing doesn’t simply revolve around banning new GMO crops. Wille is also requiring any farmers or researchers currently using GMO technology to register with the county, providing their identities, crop locations, and the “type, frequency, and customary amount of pesticides” that they use.

The notion that our counties have the authority to force businesses to disclose otherwise confidential details about operations is a dubious one, which is part of the reason Kauai Mayor Bernard Carvalho vetoed a measure put forward by his council to force large biotech companies to report details of their pesticide usage.

Although the state Department of Agriculture agreed with his concerns, and the Abercrombie Administration has shown renewed interest in boosting the monitoring of pesticide usage, the state’s involvement in the matter was too little, too late. Carvalho’s veto was overturned.

Soon afterwards, the Honolulu Star Advertiser quoted an attorney from the Syngenta Corporation as claiming “There will definitely be a lawsuit.”

Back here on Hawai`i Island, the county’s corporation counsel, Lincoln Ashida, explained to Big Island Now that the legality of the bill represents a gray area.

Ashida described the bill as “defensible,” going on to explain that in his view, there is not a legal precedent “hitting them [the council] between the eyes saying you can’t do that.”

But the county’s corporation counsel explained that due to Hawai`i’s relative youth as a state, and a lack of applicable case law, the county “doesn’t have a roadmap saying 100% it’s legal or not legal.”

In Ashida’s view, the bill, passed under the council’s police powers, won’t have its legality tested “unless it’s challenged.”

Mayor Billy Kenoi. COH photo.

But whether or not the Hawai`i County Council can trump state authority as a steward of “the public trust” using police powers, the council is most definitely charged with being a good steward of the public’s tax dollars.

In theory, that should include trying to avoid unnecessary and costly legal battles.

When the council fails in that regard, the mayor should take the opportunity to correct them.