Judicially Modified Democracy: Court and State Pre-Emption of Local GMO Regulation in Hawaii and Beyond

60 Pages Posted: 29 Feb 2016

See all articles by Rita Barnett-Rose

Rita Barnett-Rose

Chapman University, The Dale E. Fowler School of Law

Date Written: August 18, 2015


The federal framework for regulating genetically modified organisms (GMOs) has long been criticized as fragmented and inadequate to protect against various health, environmental, and economic concerns. Yet, despite having the legal authority to augment the federal framework, the overwhelming majority of states have failed to enact any substantive legislation governing GMOs at the state-level. In the wake of this regulatory vacuum, a small but growing number of local governments have attempted to regulate GMOs locally. However, local GMO regulations face significant challenges by the GMO industry, which has sought to undo local regulatory authority both through the courts and through industry lobbying of state legislators to expressly pre-empt local regulation. Today, roughly 17 states have now expressly pre-empted local authority to regulate GMOs, largely due to industry influence.

Hawaii is a high-stakes battleground for the genetically modified debate, and in 2013-2014, three local counties – Maui County, Hawaii County, and Kauai County – all attempted to regulate GMOs at the local level. Although the counties purportedly had broad statutory authority to regulate to protect local health, life, and property, as well as conservation obligations under the Hawaii Constitution, the local GMO ordinances were quickly challenged in court by the GMO industry and soon invalidated by the federal district court in Hawaii on novel state and federal pre-emption grounds.

As the very first local GMO regulations struck down on state and federal pre-emption grounds, the Hawaii pre-emption decisions will likely have a significant adverse impact on local GMO regulation across the country if allowed to stand. This article explains why the recent pre-emption decisions were wrongly decided under traditional pre-emption principles, and further argues that in the absence of state or federal comprehensive regulatory schemes sufficient to address mounting health, environmental, and economic concerns, courts and states should refrain from denying local authority to regulate GMOs. Permitting local regulation of GMOs not only fosters and supports legitimate local democracy, but it may also be what is most needed to find innovative solutions to acknowledged GMO risks and realities.

Keywords: genetically modified organisms, GMO, genetic engineering, preemption, local bans of GMOs, local regulation

Suggested Citation

Barnett-Rose, Rita, Judicially Modified Democracy: Court and State Pre-Emption of Local GMO Regulation in Hawaii and Beyond (August 18, 2015). 26 Duke Environmental Law & Policy Forum 71 (2015), Available at SSRN: https://ssrn.com/abstract=2739124

Rita Barnett-Rose (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States

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