9thCirOn June 15, 2016, the U.S. Court of Appeals for the Ninth Circuit heard oral arguments in three related bids to invalidate separate Hawaiian county ordinances.  The counties of Maui and Hawaii ban the cultivation of genetically engineered crops or plants, while Kauai County requires that cultivation of genetically modified organisms (GMOs) be annually disclosed to the county.  Opponents allege that the ordinances are preempted by state and federal statutes and regulations governing agriculture and “plant pests.”  Three separate federal district courts found that the ordinances were preempted, causing the counties, or their interested intervenors, to appeal to the Ninth Circuit.

However, the three district courts found the ordinances preempted by different laws and through the application of different theories, which made for a complicated oral argument.  Before the district courts, ordinance opponents had argued that the county laws were both expressly and impliedly preempted because they conflicted with the relevant state and federal laws.  Specifically, the opponents claimed that the federal Plant Protection Act (PPA), which authorizes the U.S. Secretary of Agriculture to prohibit or restrict the movement of “plant pest[s]” and “noxious weed[s],” expressly preempts the ordinances and, because they are in conflict with it, also impliedly preempts them.  Further, under the unique Hawaiian preemption jurisprudence, the opponents argued that various state laws, including the Hawaiian Department of Agriculture’s Noxious Weed Rules, cover the same regulatory subject matter and occupy the field, preempting any regulatory action by the counties.

While the opponents made similar arguments, the district courts found the ordinances preempted through different theories.  In Robert Ito Farm, Inc. v. County of Maui, the district court found all three forms of preemption applied.  As to federal preemption, the court cited PPA’s preemption provision, which states that “no State or political subdivision of a State may regulate the movement in interstate commerce of any … plant pest [or] noxious weed.”  Because, under PPA, the U.S. Department of Agriculture designates which species qualify as plant pests or noxious weeds and the Department has chosen to not regulate all GMOs as pests or weeds, the court held that the statute expressly preempts any state or local attempts to ban GMOs.  Similarly, because the ordinance bans GMOs that PPA would allow, it conflicts with PPA and is impliedly preempted.  Finally, the court held that the ordinance dealt with the same subject matter as several Hawaiian statutes that vested the authority to regulate plants that are detrimental to the state in the Hawaiian Department of Agriculture and Board of Agriculture.  The court held that the Hawaiian legislature intended these state agencies to wield exclusive authority, preempting Maui’s ordinance.

In contrast, the two other district courts both applied the same analytical framework, but came to slightly different conclusions.  In Hawaii Floriculture and Nursery Association v. County of Hawaii, the court agreed that PPA expressly preempted the ordinance because Hawaii County sought to ban GMOs that the U.S. Department of Agriculture allowed and also that the state regulatory scheme occupies the field, impliedly preempting the ordinance.  However, the court held that the opponents had not established Congress’s clear intent for PPA to occupy the field or that the ordinance directly conflicts with PPA.  Therefore, the court held that the ordinance was not impliedly preempted by federal law.

Finally, in Syngenta Seeds, Inc. v. County of Kauai, the district court found no federal preemption because the ordinance does not regulate the movement of plants (it merely requires annual disclosure of the use of GMOs) and thus neither falls within the purview of PPA’s preemption clause nor conflicts with the federal statute.  However, the court held that Kauai’s ordinance was preempted by state laws for the same reasons as the other courts explained: the state’s agricultural regulatory scheme left no room for the County’s ordinance.

On appeal, the three-judge panel consisted of Chief Judge Sidney Thomas, Judge Consuelo Callahan, and Judge Mary Murguia.  They considered all three of the opponents’ arguments for preemption.  Based on the oral arguments in the three cases, the panel did not seem equally sympathetic to all three preemption theories.  Judges Callahan and Murguia asked all parties probing questions about the scope of Hawaii’s agriculture regulatory scheme, in an attempt to determine whether the legislature intended to prevent counties from regulating, and whether the ordinances in fact conflicted with PPA.

Tellingly, Judges Callahan and Murguia also pushed the advocates to determine whether different theories of preemption would have different practical effects on the ordinances.  The judges appeared to express a desire to limit the scope of their holding while still finding the ordinances invalid; several questions regarded whether the court could invalidate the ordinances without reaching preemption, a finding not addressed by any of the district courts.  Judge Callahan was the most direct when she asked—while qualifying that it was merely a hypothetical—how much of the ordinances would survive if the court held that they were only expressly preempted by federal law.

Based on the questions asked during oral arguments—admittedly an unpredictable exercise—the panel seems inclined to invalidate at least the more restrictive Maui and Hawaii ordinances.  However, since the judges seemed anxious to avoid an overly broad holding, the court might write its opinion in a way to limit its practical effect.  Even so limited, any holding that invalidates the ordinances would restore the type of regulatory uniformity that is essential for nationally engaged businesses, and perhaps also deter localities in other states from following Maui, Hawaii, and Kauai’s lead.

Also published by Forbes.com on WLF’s contributor page.