Mateusz Perkowski, Capital Press
Published on April 14, 2016 3:50PM
GRANTS PASS, Ore. — Farmers seeking to overturn the ban against genetically engineered crops in Oregon’s Josephine County have come under fire in court from proponents of the ordinance.
An April 14 court hearing over the validity of the county’s prohibition largely centered on whether the plaintiffs even have the right to challenge it.
“If you look at the circumstances, the whole house of cards of this manufactured lawsuit comes tumbling down,” said Stephanie Dolan, an attorney representing ordinance supporters, during oral arguments.
The fundamental dispute in the lawsuit is whether state law overrules the county’s prohibition against genetically modified organisms, or GMOs.
Oregon lawmakers pre-empted most local GMO regulations in 2013 but Josephine County voters nonetheless approved a ballot initiative banning such crops the following year.
Landowners Robert and Shelley Ann White filed a lawsuit challenging the GMO ordinance shortly before it was set to become effective in September 2015.
While the county government decided not to defend the ordinance, proponents of the ballot initiative — Oregonians for Safe Farms and Families and Siskiyou Seeds — voluntarily intervened in the case as defendants.
Those intervenors now claim the lawsuit should be thrown out because the Whites are “hobby farmers” who were “hand-picked” to serve as plaintiffs by biotech lobbyists intent on overturning the will of Josephine County voters.
The Whites say they’ve been prevented from growing biotech sugar beets on leased property.
They’ve asked Circuit Court Judge Pat Wolke to declare that the GMO ordinance is invalid and to permanently enjoin its enforcement.
Supporters of the GMO ban have responded by attacking the Whites’ legal standing to file the lawsuit.
During the oral arguments, the intervenors cast doubts on harm suffered by the Whites due to the ordinance.
“They need more than their general disdain for this ordinance to get into court,” said Melissa Wischerath, attorney for the intervenors.
In reality, the couple hasn’t proved to hold a valid contract with biotech developer Syngenta, which would be necessary to grow GMO sugar beets, according to the intervenors.
The Whites’ lease agreement to 100 acres, where the crop was supposedly going to be planted, is also not valid, the intervenors claim.
Since they have not demonstrated an actual financial hardship from the GMO ordinance, they cannot challenge its legality in court, Wischerath said.
“The mere interest in the subject matter — like the idea they’d like to grow GE crops — is not sufficient,” she said.
The couple’s financial loss was “purely hypothetical” because they likely could have earned as much money from continuing to grow hay on the property or by switching to organic sugar beets, intervenors argue.
“Really all they have is a hope to grow GE crops someday in the future,” said Wischerath.
John DiLorenzo, attorney for the plaintiffs, countered that these allegations are both false and irrelevant.
“The Whites have shown much more than is necessary to show their standing,” he said.
Syngenta did contract with the couple to grow biotech sugar beets in previous years but did not enter into a new contract due to the GMO ordinance, he said.
As for the lease agreement, it remains valid even if there’s no expiration date and the landowner is willing to renegotiate payment terms, DiLorenzo said.
Regardless of whether they can prove a financial hardship, plaintiffs can still seek to invalidate a regulation that affects them under Oregon law, he said.
“They’re affected by the ordinance as it’s applied. Nothing further is required,” he said. “It does not matter how much they might have made if they’d been allowed to grow GMO crops.”
Apart from the question of standing, the parties also debated whether the 2013 statute that pre-empts local GMO restrictions runs afoul of Oregon’s constitution.
“We contend that law is unconstitutionally vague,” said Dolan.
Lawmakers impermissibly disallowed local rules for GMOs without creating a statewide scheme for governing such crops, she said.
“What we’re left with is a regulatory void,” Dolan said.
The pre-emption statute doesn’t contain any protections for organic and conventional farmers, she said.
“The law instead creates a novel vacuum,” she said.
The plaintiffs argued that a statewide regulatory system isn’t necessary to pre-empt local restrictions on GMOs — it’s sufficent that lawmakers didn’t want Oregon’s 36 counties to establish their own GMO rules.
Oregon also pre-empts local governments from enacting rent controls or regulating shooting ranges, among other issues, DiLorenzo said.
“It is the legislature’s right to trust in the market sometimes,” he said.
Intervenors drew a parallel between Oregon’s pre-emption statute and a law that was struck down in Ohio, which prohibited local restrictions on the foods that can be served at restaurants.
An appellate court in Ohio overturned that law because the state didn’t establish its own regulations over food content in restaurants. Supporters of the GMO ordinance say that the current test of Josephine County’s “home rule” authority is a unique case of “first impression” in Oregon, so the Ohio case should guide the judge’s thinking.
“It’s persuasive and strikingly similar,” Dolan said.
DiLorenzo said the Ohio decision has no bearing on the situation because Oregon has different legal standards for when the state can pre-empt local regulations.
In Ohio, lawmakers must cross several additional hurdles in passing a statute that can pre-empt local ordinance, he said. “Oregon’s home rule authority is not as extensive.”
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