23 - A Biotechnology “Regulatory Commons” Problem

Summary

This chapter explores a “regulatory commons” problem of jurisdictional mismatch and overlap in fragmented legal regimes that adversely impacts regulatory opportunities to address social ills at federal, state and local levels. Three Hawai‘i counties adopted ordinances addressing perceived environmental and health risks associated with genetically engineered (GE) seed crops. The ordinances relied on self-effectuating 1978 state constitutional amendments that established environmental rights and public trust responsibilities consistent with Native Hawaiian cultural values, which recognize rights and responsibilities in the management of natural resources for the benefit of present and future generations. Applying a critical contextual analysis, this chapter exposes how federal court decisions invalidating the ordinances based on implied state preemption ignored the Hawai‘i Constitution and case law. Notwithstanding significant gaps in both federal and state regulation of GE seed crops, the federal courts’ superficial analysis of supposedly “comprehensive, uniform and exclusive” statutory schemes is based on regulatory assumptions of “substantial equivalence” that are essentially appeals to ignorance. Decades-old federal policy choices assigning risks associated with scientific uncertainty to future generations will continue to tip the balance of interests in favor of industry unless appropriate corrective action is taken by Hawai‘i’s legislature, relevant administrative bodies, or the state judiciary.