Real Estate & Property Law

Op-Ed on GMO Algae Case

By Robert Thomas (inversecondemnation.com)

Check out Jay Fidell's op-ed in the Honolulu Advertiser, "Appeals court decision threatens our biotech sector" about the recent Intermediate Court of Appeals decision in Ohana Pale Ke Ao v. Bd. of Agriculture, State of Hawaii, No. 27855 (May 21, 2008). 

In that case, the ICA held that the state must complete an environmental assessment (EA) prior to approving a permit allowing the importation of genetically engineered algae.  Jay writes:

The case involves a permit for importation of a genetically engineered algae, a choice target of environmental activists. But the court decision is not limited to genetically modified organisms: It covers all animal and plant organisms, GMO and otherwise. And it doesn't affect just permit applications ? it also affects permits already granted for organisms already in the state. Agricultural research and cultivation also will undoubtedly be affected. Hard cases make bad law.

The retroactive nature of the decision reminds us of the Superferry. There, the applicant did everything the Department of Transportation asked for and got its approval. Then, years later, the court imposed additional requirements. How different is that from what happened here? The applicant here did everything Agriculture asked for and got its permit. Then, years later, the court imposed additional requirements. How can you rely on what government tells you? How can you do a business plan? How can you get investors?

Our summary of the decision here. 

Full post as published by inversecondemnation on July 07, 2008 (boomark / email).