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Remembering the “Big Five”: Hawaiʻi's Constitutional Obligation

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Remembering the “Big Five”: Hawaiʻi's Constitutional Obligation Remembering the “Big Five”: Hawaiʻi’s Constitutional Obligation to Regulate the Genetic Engineering Industry * Daylin-Rose Gibson I. INTRODUCTION ..................................................................................... 214 II. GENETIC ENGINEERING ....................................................................... 217 A. What is Genetic Engineering (GE)? ............................................ 217 B. Growth of the GE Industry in the United States .......................... 219 C. Emergence of the GE Industry in Hawaiʻi .................................. 222 III. REGULATION OF THE GE INDUSTRY ................................................... 233 A. Federal and State Regulation of Hawaiʻi’s GE Industry ............ 234 B. Fallibility of Federal Regulations ............................................... 246 IV. GE CROPS ON THE LOOSE: GE CROP RELEASE AND ITS POTENTIAL HARM TO HAWAIʻI’S NATURAL RESOURCES ..................................... 247 A. Gene Flow and Cross Pollination with Non-GE Plant Varieties 249 B. Bt Crops: Impact on Non-Target Species .................................... 253 C. The Risk of the Unknowns: Field Trials and Protected Traits .... 256 V. LEGAL FRAMEWORK: CONSTITUTIONAL PROTECTIONS ....................... 258 A. Article XI, Section 1: The Public Trust Doctrine ........................ 258 B. Article XI, Section 9: Private Right to a Clean and Healthful Environment .............................................................................. 264 VI. ANALYSIS: THE DOA’S PUBLIC TRUST OBLIGATIONS TO REGULATE THE GE INDUSTRY ............................................................................ 266 A. The Scope of Public Trust Includes Hawaiʻi’s Ecosystem and Biodiversity ............................................................................... 267 B. The DOA Needs to Gather Information to Fulfill Its Duty to Plan ........................................................................................... 269 C. The DOA Failed to Adequately Scrutinize the GE Industry’s Release of GE Crops ................................................................. 273 VII. THE PEOPLE OF HAWAIʻI’S RIGHT TO SUE TO ENFORCE THEIR RIGHTS TO A CLEAN AND HEALTHFUL ENVIRONMENT ...................... 275 VIII. RECOMMENDATIONS TO BETTER FULFILL AGENCY * Juris Doctor Candidate 2014, William S. Richardson School of Law. Mahalo nui loa to Professor D. Kapua`ala Sproat for her unfaltering guidance, feedback, and mentorship throughout the composition of this article. Also, many thanks to Paul Achitoff, Scott Enright, Russell Kokubun, Thomas Matsuda, Fred Perlak, Mark Phillipson, Walter Ritte, Alan Takemoto, Hector Valenzuela, and Ania Wieczorek for being experts in their respective fields and for imparting their knowledge to me. I would also like to express my sincerest gratitude to my husband and daughter for their patience throughout the creation of this article and for their support throughout my academic exploration into this controversial topic. I hope that this piece will add to the conversation surrounding Hawaiʻi’s genetic engineering industry in a productive manner. Any mistakes or errors are my own. 214 Asian-Pacific Law & Policy Journal Vol. 15:2 RESPONSIBILITIES ............................................................................. 276 A. Administrative: DOA’s Authority to Regulate………….......…..279 B. Legislative: The State’s Incentive to Enact Legislation………..280 IX. CONCLUSION .................................................................................... ..283 I. INTRODUCTION With the end of over a century of plantation rule in Hawaiʻi,1 a new agricultural era is beginning.2 Instead of growing food to eat, a majority of the genetic engineering3 (“GE”) operations in Hawaiʻi specialize in cultivating seed corn and testing new GE crops4 for future commercialization.5 In 2010, Hawaiʻi became the world’s leading 1 Andrew Gomes, HC&S, last of sugar cane plantations, on track toward more financial losses, THE HONOLULU ADVERTISER (Nov. 15, 2009), http://the.honoluluadvertiser.com/article/2009/Nov/15/ln/Hawaii911150370.html. 2 See Paul Voosen, King Corn Takes Root in Hawaiʻi, N.Y. TIMES (Aug. 22, 2011), http://www.nytimes.com/gwire/2011/08/22/22greenwire-king-corn-takes-root-in- Hawaii-28466.html?pagewanted=all (stating that “[o]ver the past decade, the five major companies that dominate the world seed industry have starkly increased their operations in Hawaiʻi, where they have long tested experimental biotech crops”). Note: The author intentionally adds ʻokina and kahakō to Hawaiian words where appropriate in respect of the Hawaiian language, which is an official language of the State of Hawaiʻi. 3 For this paper, the author uses the term “genetic engineering” or “GE” to refer to the transgenic process in which crops with GE traits, commonly known as genetically modified organisms (GMOs), are created. See Ania Wieczorek, Univ. of Hawaiʻi Department of Tropical Plant and Soil Sciences, Six Questions about Agricultural Biotechnology 1 (2007) [hereinafter, Wieczorek, Six Questions] (stating that “the acronym GE stands for genetic engineering (or genetically engineered) and when applied to crops means transgenic crops that are initially created in a research laboratory using transgenic technology”). 4 To steer the discourse of the paper away from both negative and positive connotations associated with the term “GMO,” crops that are created through the transgenic, genetic engineering process are referred to as “GE crops” or “GE plants.” The new genes that are imputed into the crop or plant through genetic engineering are referred to as “transgenes.” Wieczorek, Six Questions, supra note 3, at 2 (stating that “in the eyes of general public, GMO crops, GE crops, and transgenic crops are all the same, and in most cases if a lay person is using the term ‘GMO’ they probably are referring to a genetically engineered, transgenic crop. However, genetic engineering is just one form of genetic modification that is used to ʻ at 2 (’ crops”). 5 See Voosen, supra note 2 (stating that “[w]hile the rest of the farm sector has flatlined, the seed companies have grown at double-digit rates, testing their corn, conventional and biotech, in a cluster of fields northwest of the Honolulu airport”). 2014 Gibson 215 producer of seed corn.6 While the GE Industry7 is lucrative, little is known about the environmental and health consequences of these crops, their field tests, and the agricultural practices that dominate Hawaiʻi’s GE Industry. Many residents oppose the GE Industry’s presence in Hawaiʻi,8 but the industry’s secretive nature leaves many unanswered questions about what is really being grown in these islands, and how the industry’s practices will affect the health of Hawaiʻi’s natural environment and people in the short and long term future.9 The fear surrounding the GE Industry is not unlike the archetypal small town versus big corporation drama.10 There is secrecy,11 inexplicable health and environmental damage,12 potential conflicts of interest,13 and 6 UNITED STATES DEPARTMENT OF AGRICULTURE, ANIMAL AND PLANT HEALTH INSPECTION SERVICE, STATE REPORT: HAWAIʻI 1 (2010), available at http://www.aphis.usda.gov/wildlife_damage/state_report_pdfs/2010/12-hawaii_report.pdf (stating that in 2010 “Hawaiʻi [was] the world’s leading producer of seed corn, which account[ed] for 96% of the state’s $176 million agricultural biotechnology industry”). 7 For this paper, the terms “GE Industry” and “Industry” refer to both the commercial seed corn industry and the open-air field trials that are conducted throughout the Hawaiian islands. 8 Nana Ohkawa, Hundreds march against GMOs in Hawaiʻi, KITV NEWS (Mar. 2, 2013, 4:23 PM), http://www.kitv.com/news/hawaii/Hundreds-march-against-GMOs-in- Hawaii/-/8905354/19154866/-/na3u16z/-/index.html (reporting on the first of a series of marches against the GE Industry that occurred throughout the State of Hawaiʻi in the month of March 2013). 9 See Press Release, Ctr. For Food Safety, CFS Sues State of Hawaiʻi for Refusing to Disclose Information on Field Tests of Genetically Engineered Crops in Hawaiʻi, http://www.centerforfoodsafety.org/issues/311/ge-foods/press-releases/928/cfs- sues-state-of-Hawaiʻi-for-refusing-to-disclose-information-on-field-tests-of-genetically- engineered-crops-in-Hawaiʻi (last visited Apr. 7, 2013). The Center for Food Safety brought a lawsuit against the State of Hawaiʻi for failing to disclose information about GE field tests to residents. Joseph Mendelson, the Center for Food Safety’s legal director, stated that “[t]he shroud of secrecy surrounding biopharming is unacceptable.” He is also quoted saying that “[t]he public has the right to know about these potentially harmful substances being grown in our backyard. The state has become a willful accomplice in depriving Hawaiians [of] this right.” Id. 10 See ERIN BROCKOVICH (Jersey Films 2000). 11 See CFS Sues State of Hawaiʻi, supra note 9 (stating that very little information is provided to the public about the potentially harmful biopharmeceutical field tests in Hawaiʻi). 12 See Mercy Ritte, Monsanto/Mycogen Losing Containment (extended version), YOU TUBE (Feb. 8, 2013), http://www.youtube.com/watch?v=M4c8Tf2of6E. See also Vanessa Van Voorhis, Waimea residents sue Pioneer: GMO seed company facing ‘substantial’ lawsuit, THE GARDEN ISLAND (Dec. 13, 2011, 11:45 PM), http://thegardenisland.com/news/local/article_82ff2c3e-2632-11e1-9ca7- 001871e3ce6c.html. 216 Asian-Pacific Law & Policy Journal
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