Most biotech research in Hawai'i requires importation of animal and plant substances from outside the state. Over the years, the biotech community has had to deal with a difficult and time-consuming process at the state Department of Agriculture to get these permits. But now a new challenge has arisen to make that process far worse.

In May, the Intermediate Court of Appeals decided Ohana Pale Ke Ao, Kohanaiki Ohana, GMO-Free Hawaii and Sierra Club vs. Board of Agriculture. That decision requires the Department of Agriculture to conduct environmental assessments under the state Environmental Policy Act, in addition to the existing statutory permit process, before issuing importation permits for the use of animal or plant substances on state lands.

CHANGING THE RULES

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?

PAYING THE COSTS

Last week, the Department of Agriculture notified all applicants and permit holders that it will have to integrate the requirements of the new assessment process with its existing review process, and that it "anticipates delays in processing permits and related requests." The department seems frozen in the headlights. All expectations are that it will take a very long time to sort things out.

So what does this decision require the department to do? Hasn't it been assessing the environmental risks all along? How do you make an environmental assessment, customarily reserved for land use and development issues, for organisms? What would these assessments cost? Environmental assessments, especially those done under the heat of court action, have cost hundreds of thousands of dollars and have taken years to complete.

The court does not deal with the costs of its decision, it simply requires the Department of Agriculture to conduct the environmental assessments. But the department already is underfunded and now subject to the administration's 4 percent across-the-board budget cuts. At the end of the day, the enormous costs of this decision will be paid by us, the taxpayers, with no benefit to anyone but the activists.

MAKE IT RIGHT?

Increasingly, environmental assessments have become tactical weapons in the hands of activists who want to stop biotech research on the basis of questionable environmental and scientific theories. If the courts are going to adjudicate issues of science, they really ought to hear from the scientific community on those issues. That didn't happen here.

The attorney general has not appealed this decision and has indicated that he will not be doing so. It will then become final and the law of our state.

But why can't the government recognize that here in the 21st century diversification is critical to our future? Biotech, with medicine and life sciences, is the most promising sector in our state, one which we should all support. That's the best way, and maybe the only way, to save our bacon in a world of new destination resorts competing for our visitors.

Who's in charge anyway? They should understand that if a solution is not promptly forthcoming, our local biotech organizations in academia and industry are at risk of losing their funding, capital, jobs, students and researchers to business friendly venues elsewhere.

The Department of Agriculture should address the problems created by this case immediately. It should work with the biotech community to find a way to get things moving again. Perhaps there can be exemptions from the expansive reach of this decision. Perhaps there can be blanket assessments for multiple permittees. Perhaps biotech stakeholders can propose genetic methodologies to assess potential effects of the species to be imported.

The bottom line, as in the case of the Superferry, is that the problems in the Department of Agriculture importation process, as now raised to an impossible level by this decision, will probably have to be fixed by the legislature. Hopefully the legislature will see how high the stakes are, and will move to do something in January. This January, that is. There's no time to lose.