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Maui just banned GMO farming. Will it hold up in court?

A farm in Maui
A farm in Maui
Ben Reierson/Flickr

A new law in Hawaii could have a surprisingly big impact on the future of genetically modified food.

On November 4, voters in Maui County approved a ballot initiative that puts a moratorium on new plantings of genetically engineered crops in Maui and Molokai until the county conducts a thorough public health and environmental assessment and deems the crops safe.

The law could bring much GMO research on the islands to a standstill — possibly for quite some time. A company that tried to test a new field of Bt sweet corn, modified for pest resistance, could now face up to $50,000 in daily fines. (The law has an exception for crops that are in mid-growth cycle, so current cultivation doesn't need to cease immediately.)

Why does that matter? These islands turn out to be fairly important for GMO research. Hawaii has the rare property of being both a) in the United States (which means there are relatively permissive rules for GMO research compared to other countries) and b) in a tropical climate (which allows for up to three plantings a year, speeding up the research process). "Almost any corn seed sold in the U.S. touches Hawaii somewhere," one biotech executive told The New York Times back in 2013.

Now, Maui and Molokai aren't the only islands on Hawaii where GMO research is happening, but they're two key ones. And other parts of Hawaii have been discussing similar restraints on GMO farming recently. Companies that conduct field trials in Maui, including Monsanto and Dow Chemical, are planning to challenge the new moratorium in court. But if that doesn't work, they could take a big hit — or be forced to shift operations elsewhere.

What did Maui just do about GMOs?

Voters in Maui County approved an initiative that will put a moratorium on the planting of all genetically engineered seeds on Maui and Molokai until a thorough review of their health and environmental impacts is conducted.

You can read a longer overview of the initiative here and the full text here. There's an exception for crops in mid-growth cycle. There's also an exception for non-profit university research, so long as it's conducted in indoor labs.

The new law levies civil penalties on anyone who continues to cultivate GMOs without conducting an health and environmental review first. Those start at $10,000 per day and rise to $50,000 per day for repeated violations. There are also criminal penalties.

Supporters of the moratorium argued that companies like Monsanto and Dow Chemical have been testing pesticide-resistant plants on Maui and Molokai — with possibly deleterious effects on the surrounding communities from pesticide spraying. (So far, much of the evidence of harm has been anecdotal, but this was a major issue.) GMO critics have also raised the concern that genes from genetically modified crops can escape and mix with native plants. So they want a full review.

Opponents of the moratorium included big biotech companies like Monsanto as well as some (though not all) farmers. They argued that the US Department of Agriculture already regulates GMO field trials and planting, and those cultivation practices have been found to be safe. By contrast, Maui's new review will be far stricter than anything that any farmer anywhere faces — and amounts to a de facto ban on planting.

(More broadly, a growing number of scientists have come out publicly in support of GMOs, arguing that genetic engineering is a useful technique for breeding new crops or addressing challenges like climate change or global hunger. These scientists tend to argue that many popular fears about GMOs are overblown. See here for our backgrounder on the subject.)

What will the environmental and health review entail?

Anyone hoping to plant GM crops and have the moratorium lifted must pay for a health and environmental review conducted by Maui County.

The evaluation is supposed to be conducted by "non-biased" experts and will look into things like: The effects of pesticide use on the environment (both in isolation or in combination); the possibility that genetically modified seeds could escape into the environment: and the possibility of gene transfer from a genetically modified seed to a non-modified seed.

Notably, the review board also must show that cultivation practices aren't causing birth defects on either Maui or Kauai before GMO planting is allowed to resume. (That's a potentially steep hurdle, since it could prove challenging for growers on Maui to prove that his planting practices are having no effect on birth defects on the separate island of Kauai.)

According to the text of the initiative, the evaluation will take at least 24 months, including fact-finding, review, and public comment periods.

What will be the impact of the GMO ban?

A handful of large agribusinesses and their employees will be most affected if the bill takes effect. Monsanto owns or leases some 3,100 acres on Maui and Molokai and employs about 540 people. A subsidiary of Dow AgroSciences owns about 400 acres on Molokai and employs around 100 people.

In the very short term, these operations won't have to close — since the ban has an exemption for crops that are in the middle of the growth cycle. But in the medium-term, it could have an impact on jobs and employment.

"If the moratorium causes Monsanto and Dow AgroSciences to close up shop, the island's unemployment rate could jump [from 9 percent] to 18 percent," noted Shannon Wianecki at Civil Eats. (It's worth noting that a majority of voters on Molokai voted against the ban.)

But the ban could have a bigger ripple effect on GMO research. In recent years, Hawaii has become a major hub for the development of genetically engineered corn and other crops. That's partly because it's in the United States, where rules on planting are much more permissive than they are in other countries. But it also helps that Hawaii has a tropical climate, which allows companies to grow up to three plantings of corn each year — speeding up research.

All told, Monsanto, Pioneer, Syngenta, Dow and BASF now occupy some 25,000 out of the state's 280,000 acres of agricultural land — in Kauai, Oahu, Maui and Molokai.

In some cases, that GMO research has benefitted Hawaii agriculture specifically. Many of Hawaii's papayas are now genetically modified to resist a virus that nearly wiped out the crop in the 1990s. But many of the crops are tested on Hawaii but largely grown elsewhere. And the presence of these large companies has also created a large backlash — as Amy Harmon explored in this excellent piece for The New York Times earlier this year.

Will the initiative hold up in court?

That's one big question. Companies like Monsanto and Dow are already planning to challenge it — on the grounds that it's pre-empted by existing laws around GMO testing and planting.

"We believe this referendum is invalid and contrary to long-established state and federal laws that support both the safety and lawful testing and planting of GMO plants," said John Purcell, vice president, Monsanto Hawaii Business and Technology Lead, in a statement.

These companies have gotten help from the courts before. Back in August, a federal judge in Honolulu overturned a Kauai County ordinance that would have required agribusiness companies to disclose the use of pesticides and GMO crops. The reason? The ordinance was preempted by state law.

Further reading:

-- In other GMO news, both Colorado and Oregon voted against ballot initiatives that would have put labels on packaged foods containing GMO ingredients. Biotech firms like Monsanto and Dupont had spent millions opposing these initiatives — and won. Grist's Nathanael Johnson has a post-mortem of the labeling fight. One possible factor here? The media kept pointing out there's no good scientific evidence that GMOs are harmful to your health.

-- Amy Harmon's New York Times piece is a terrific overview of the GMO debate in Hawaii.