As Montville, Maine goes, so goes Wolcott, Vermont? A primer on the local regulation of genetically modified crops.

• Author: Bussell, Charles J.

"As Maine goes, so goes Vermont." (1)

"We are ... imposing a moratorium on the growing of GM crops in Montville and demanding that our legislators pass laws to protect our rights as consumers and farmers." (2)

1. INTRODUCTION

   On March 29th, 2008, the residents of Montville, Maine voted to ban the cultivation of genetically modified organisms (GMOs) within the town's borders. (3) They did so because, among other things, the town's residents were concerned about the potential for genetic contamination from farms growing genetically modified crops (GM crops). (4) In enacting its ordinance, Montville became the first local government outside of California to ban the cultivation of GM crops. (5)

   Opponents of GM crops include organic farmers, environmentalists, and anti-corporate activists. (6) They cite a litany of concerns about GM crops, including cross-pollination of conventional crop varieties; adverse health effects, if consumed by humans, such as allergic reactions; and unknown environmental effects. (7) Producers of genetically modified crop seed refute these claims, arguing that GM crops are just as safe as non-genetically modified varieties. (7) They also counter that GM crops offer advantages over conventional varieties, including increased yields, lower carbon emissions resulting from production, and other beneficial environmental effects. (8) Genetically modified crop opponents argue that the federal government has failed to provide proper oversight on the development, testing, and cultivation of GM crops. (9) They also assert that local regulation of GM crops is needed to protect the environment and public health. (10)

   In response, these food activists have sought to use the police power afforded to local governments to regulate GM crops. (11) As of April 2009, only nine local governments across the entire nation have enacted mandatory prohibitions on GM crops. (12) California, Maine, and Vermont represent hotbeds of local opposition to GM crops, whether in the form of mandatory prohibitions, or in the form of non-binding resolutions. (13) Although only a few communities, concentrated in a few states, have acted with respect to this issue, evidence exists of a growing movement on the local level against GM crops. (14)

   This local angst toward GM crops is not without restraint, however, as the power of local governments to enact law is limited. (15) Federal law and, to a greater extent, state law restrain the legislative powers of local governments. (16) Limitations imposed by state law explain, in part, why local governments in Vermont have pursued non-binding resolutions against GMOs, while Montville, in the neighboring state of Maine, has enacted mandatory prohibitions on GMOs. (17) Beginning with federal law, the first type of restraint on local action is preemption. (18) Federal preemption has a variety of forms, but at its essence, it means that an ordinance may not contradict federal law either explicitly or implicitly. (19) The second form of federal restraint on local authority is the Dormant Commerce Clause, which essentially bars states from discriminating against interstate commerce. (20) But the powers of the federal government are not the only limitations on local authority. (21) Even if an ordinance survives the rigors of federalism, it must also fall within the powers granted by the state in which it is incorporated. (22) Like federal preemption, states can also preempt local governments from acting. (23) At least one commentator has described state preemption as the "primary threat" to ordinances. (24) In fact, many states have passed laws that preempt local regulation of GM crops. (25)

   Using Montville's ordinance for illustrative purposes, this Note will focus on the threats that state law poses to local governments that seek to regulate GM crops. (26) As background, the Note will begin with a summary of the federal regulatory regime with respect to GM crops. (27) Then, the Note will provide a brief discussion of the Supremacy and Dormant Commerce Clauses. (28) Next, the Note will examine the two primary approaches to granting and construing municipal power: Home Rule and Dillon's Rule. (29) This Note shall refer to states that grant broad and liberally construed authority to local governments (at least with respect to local issues) either by statute or by constitutional provision as "Home Rule" states. (30) Those states that require express authorizing legislation for areas in which local governments seek to regulate, and whose courts strictly construe local authority shall be referred to as "Dillon's Rule" states. (31) This Note will use Maine and California as examples of Home Rule states and Vermont will illustrate a Dillon's Rule state. (32) This exercise will aid in the determination of whether a town in these states would have the constitutional authority to enact a Montville-style ordinance. (33)

   Next, the Note will examine the issue of state preemption, using the so-called "Right to Farm" laws of Maine, California, and Vermont as examples of potential preemptive statutes. (34) Finally, the Note will apply the state's right to farm law to see if it preempts a Montville-style ordinance. (35)

2. HISTORY

   1. The Federal Regulation of GM Crops

      At the federal level, GMOs, including GM crops, are regulated entirely under existing health and safety legislation. (36) There are no federal statutes dealing specifically with GMOs or GM crops. (37) The current genetically modified regulatory regime began in 1984, when President Reagan formed a working group to determine how to regulate GM crops. (38) The resulting document, the Coordinated Framework for the Regulation of Biotechnology, divided the task of regulating GM crops among three federal agencies: the Food and Drug Administration (FDA), the Environmental Protection Agency (EPA), and the United States Department of Agriculture (USDA). (39)

      1. The FDA: Ensuring Purity and Safety of GMOs Intended for Consumption

         Under the Federal Food and Drug Control Act (FFDCA), the FDA is charged with the responsibility of ensuring the purity and safety of foods intended for human or animal consumption sold in interstate commerce. (40) The FFDCA, inter alia, bans the sale of adulterated foods from interstate commerce. (41) The FFDCA defines an adulterated food as containing "poisonous or deleterious substance which may render it injurious to health." (42) Therefore, GM crops that contain harmful substances are subject to FDA enforcement. (43)

      2. The EPA: Regulating GMOs Classified as Pesticides or Toxic Substances

         The EPA regulates the testing, distribution, sale, and use of substances classified as pesticides under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). (44) FIFRA authorizes the regulation of GM crops with plant incorporated protectants (PIPs)--substances inserted into the plant's DNA which act as pesticides. (45) The Supreme Court has held that FIFRA does not preempt local governmental regulation of pesticide use. (46)

         The EPA also has authority to regulate non-pesticidal GM crops as "new chemical substances" under the Toxic Substance Control Act (TSCA). (47) The EPA determines whether substances constitute an unreasonable risk to human health or the environment. (48)

      3. The USDA: Regulating GMOs Considered "Plant Pests"

         The Plant Protection Act (PPA) gives the USDA the power to regulate the import, export, and transport of "plant pests," which are defined as any organism that can "directly or indirectly injure, cause damage to, or cause disease in any plant or plant product." (49) The Animal and Plant Health Inspection Service (APHIS) is the agency arm in charge of this task. (50) APHIS's regulation of new GMOs begins in the development stage and continues until it is proven that the GMO is not a plant pest. (51)

   2. Supremacy Clause and Preemption

      1. Federal Supremacy

         With the patch-work of existing regulations and statutes that regulate GM crops as outlined above, one obvious limitation on the ability of local governments to enact laws regulating GM crops is the Supremacy Clause of the U.S. Constitution. (52) The Supremacy Clause dictates that where a federal law and a state law come into conflict, the federal law preempts the state law. (53)

      2. Federal Preemption

         There are two forms of federal preemption: express and implied. (54) Express preemption occurs when Congress has explicitly stated that a statute preempts state law. (55) Implied preemption on the other hand, occurs implicitly through the pervasiveness of federal regulations, or if state action would frustrate the purpose of Congress, or if it would be impossible to comply with both state and federal law. (56)

   3. Dormant Commerce Clause

      Another federal restraint on the power of local governments is the Dormant Commerce Clause. (57) Where the federal government refrains from legislating, the Dormant Commerce Clause bars states from creating laws or regulations that burden or discriminate against interstate or foreign competition. (58) When analyzing a law under the Dormant Commerce Clause, one must first determine whether the law discriminates against interstate commerce, in which case, the law is presumptively invalid, or if it simply regulates such commerce "evenhandedly" with only "incidental effects," and is therefore valid. (59)

      A regulation can be discriminatory in two different ways: facially or as applied. (60) If the regulation favors in-state economic interests over out-of-state competitors, it is discriminatory, and presumably invalid. (61) On the other hand, non-discriminatory regulations are valid so long as the burden on interstate commerce is not "clearly excessive in relation to the putative local benefits." (62)

   4. State Restrictions on Local Action

      1. Local Governments as Subordinate

         While the Tenth Amendment to the U.S. Constitution reserves powers for the states, it makes no mention of local governments. (63) In the modern view, local...