by Kai Huschke
July 11th, 2014

    Last year, Hawai’i County adopted a ban on the outdoor growing of genetically modified crops (GMOs). While the law – Ordinance 13-121 – contains some exemptions for papaya and the growing of GMOs in places where they were already being cultivated, it creates a broad ban on the planting of new GMO crops.

Unfortunately, the Ordinance fails to address the “rights” and powers possessed by agribusiness corporations which have been routinely used across the U.S. to overturn similar laws.

Predictably, this June, the Biotechnology Industry Organization (a Washington, D.C.-based trade association) – along with the Cattlemen’s Council, the Hawai’i Floriculture, the Nursery Association, and others – sued Hawai’i County to overturn the ban.

In the lawsuit, the corporations argue that the ban violates their corporate constitutional “rights” – including their “right” to grow GMOs, engage in commerce, and use of state and federal laws to override local laws.

Representing most of the plaintiffs is Arent Fox, LLP, a law firm straight from Washington, D.C.’s K Street – the U.S. epicenter for corporate lobbyists. But keep in mind that expensive lawyers aren’t necessary for the corporations to succeed in overturning the ban.

For more than a century, corporations and their lawyers have been using the courts to concoct a broad structure of law that elevates corporate “rights” over community rights. They’ve succeeded, such thattoday’s corporations possess the “right” to use our state and federal government to override community decision making, corporate personhood “rights,” and commerce protections – all of which they can use to override the laws of our communities.

For before there were GMOs, there were toxic waste landfills, railroads, mining, and a wide range of other community threats. Each time a community tried to stop a threat from coming in, corporations would simply use that confrontation to expand their rights and powers. Thus, the next time it happened, they’d have more levers to pull to override community resistance. This corporate structure of law is in inherent conflict with our fundamental right of local, community self-government.

Today, communities across the U.S. are recognizing that without dismantling this structure, we cannot create the economically and environmentally sustainable communities that we want and need.

For if a handful of corporations have the constitutional “right” to patent, grow, and distribute GMOs on the Big Island or anywhere else, our community vision of sustainable farming isn’t worth the paper we write it on.

In short, our structure of law can either protect the “rights” of corporations, or it can protect the rights of communities and nature, but it cannot do both.

In Oregon, several farming communities have come to grips with that realization. They’ve proposed Food Bills of Rights Ordinances, which recognize the community right to a local, sustainable food system. The Ordinances ban GMOs as a violation of that right, and refuse to recognize that agribusiness corporations possess certain “rights” within their municipalities.

These communities understand that to ban GMOs, they must change the underlying structure of law that elevates corporate “rights” over community rights.

This work in Oregon follows in the footsteps of communities like Pittsburgh, PA, and Mora County, NM, which banned fracking as a violation of community and nature’s rights, and redefined  corporate “rights” within those localities.

  These communities, and over 150 others across the country, represent the necessary next step in our activism – addressing the root causes of why our structure of law stops us from actually protecting our own rights against corporate ones.

If people on the Big Island are serious about banning GMOs, they must begin to directly challenge this structure of law which guarantees that they can never enforce their ban.

To do so, they could adopt an amendment to Ordinance 13-121 which says that “corporations and other business entities which violate this law shall not be deemed to possess any legal rights, privileges, powers, or protections which would interfere with the enforcement of the law.”

   Such an amendment would re-focus the struggle on what is truly at stake – the rights of a corporate minority to overturn visions of sustainability advanced by a community majority. That, in turn, could give rise to changes to the Hawai’ian Constitution which eliminate the ability of corporations to use the constitution against the very people that it is supposed to protect.

Alternatively, we can watch as the federal court does what federal courts do – uphold the “rights” of corporations to grow GMOs over our rights to say no to them.

Additional Resources