By: Mateusz Perkowski

A Hawaiian county's ban on biotech crops was overturned by a federal judge, but critics of genetic engineering say they scored an important legal point in the ruling.

A federal judge has struck down a Hawaiian county’s ban on genetically modified crops, but his ruling contains a potentially important win for critics of biotechnology.

Last year, Hawaii County approved an ordinance prohibiting most cultivation of genetically engineered plants. A coalition of agriculture groups filed a lawsuit to oppose the ordinance.

U.S. Magistrate Judge Barry Kurren has now invalidated that ban because it is pre-empted by state laws that govern agriculture, much like Kauai County’s regulations that mandated pesticide buffers and mandatory reporting of genetically modified organisms. Those rules were overturned by the same judge earlier this year.

While supporters of the GMO ban see his ruling as an overall defeat, they point out a bright spot that may have future legal implications: the judge held that federal law does not entirely pre-empt such a prohibition.

The judge held that a federal plant protection statute does preclude states or counties from regulating biotech crops if the USDA still has jurisdiction over them.

However, the federal mechanism for regulating GMOs is not so “dominant” that it necessarily conflicts with any state or county law dealing with genetically engineered crops that have been deregulated by USDA, the judge said.

The agricultural plaintiffs have failed to establish that Hawaii County’s GMO ordinance is impossible to reconcile with federal rules or that it “stands as an obstacle to Congress’ purpose and objectives,” the ruling said.

The Center for Food Safety, a nonprofit that supported the GMO ordinance, believes that aspect of Kurren’s ruling is significant because it’s the first time a federal judge has said federal law doesn’t necessarily prevent counties and states from banning such crops.

Such a finding is logical because the USDA’s policy — which was upheld by a federal appeals court — is that the agency has no authority over biotech crops once they’re deregulated, said George Kimbrell, an attorney for the group.

“There cannot be pre-emption from a void,” he said. “They can’t have it both ways.”

The judge basically held that federal agencies use a “coordinated framework” of existing laws to regulate GMOs, but those statutes aren’t specific enough to biotechnology as to pre-empt state or county regulations, said Kristine Tidgren, staff attorney for the Center for Agricultural Law and Taxation at Iowa State University.

If other states or counties enact GMO regulations that are challenged in court, other federal judges may follow Kurren’s lead, Tidgren said.

“Courts are going to be careful about stripping away state authority,” she said.

Such an approach could open the way for state-by-state regulation of GMOs unless Congress decides to expressly pre-empt them, Tidgren said.

However, a statewide ban on biotech crops could run into other legal problems, like the constitutional ban on state laws that burden interstate commerce, she said.

“I don’t think the courts are going to make it easy for either side,” Tidgren said.

Originally Published: Capital Press