Federal judge declares new Kauai GMO, pesticide law invalid

A federal judge ruled Monday that a Kauai County ordinance that requires large-scale agricultural operations to disclose the presence and use of pesticides and genetically-modified crops is preempted by state law and therefore unenforceable.

Kauai County Ordinance 960 was passed in November 2013 and was originally scheduled to take effect on August 16. However, a lawsuit filed against Kauai County by DuPont’s Pioneer Hi-Bred International, Inc., Syngenta Seeds, Agrigenetics, Inc. and BASF Plant Sciences LP previously delayed implementation until October and now, with Monday’s ruling, not at all.

The law had received widespread support on the island and was designed to protect local residents and Kauai’s environment from the year-round spraying of large quantities of restricted use pesticides by multinational chemical companies.

The ordinance also established buffer zones near sensitive areas, including schools, medical facilities, dwellings, parks, public roadways, shorelines and waterways.

However, the lawsuit argued, among other things, that that the county had no authority to regulate pesticides and genetically engineered seeds because state and federal laws did so already. “Right from the very first day when we testified in the county council, we told them they had no authority to pass this law,” said Paul Alston, Syngenta’s attorney.

U.S. Magistrate Judge Barry Kurren concluded that, although the Hawaii Pesticide Law does not contain any provisions that actually conflict with the Kauai ordinance’s requirements, the state law’s broad scope implied that the Hawaii legislature intended that only the state government had the authority to regulate pesticide matters.

The court also ruled that federal laws do not preempt the ordinance, leaving open the possibility that the state could amend its laws to protect its residents without running afoul of federal law.

A public hearing on the proposed pesticide/GMO rules that was scheduled for Tuesday, August 26, at the Kauai War Memorial Convention Hall was canceled as a result.

“I always said and I agree with the intent of Ordinance 960, but I felt the law was not proper and legal in ways to proceed,” said Kauai Mayor Bernard Carvalho Jr.

“The county’s special counsel is reviewing the court’s decision,” he added. “Aside from all else, we are committed to continue working closely with the state on matters relating to agricultural pesticide use. We also hope that the ruling won’t preclude us from following through on the joint fact finding process as well as the Environmental Public Health Impact Study that were called for in Ordinance 960 and a subsequent resolution passed by the County Council. Having good solid information will help us all better address concerns about the health impacts of pesticides as we move forward.”

Four nonprofit organizations –  Ka Makani Ho’opono, Center for Food Safety, Pesticide Action Network North America and Surfrider Foundation – represented by Earthjustice and Center for Food Safety, were permitted to intervene as of right in the lawsuit against Kauai County, and since have helped to defend the ordinance in legal filings.

They say they are currently analyzing all legal options, including appeal. “It’s a sad day for the people of Kauai,” said Paul Achitoff of Earthjustice, “But, as I said, this is the beginning.  This is round one and there are a number of rounds to go.”

The ruling will send a rippled effect across the state.

On the Big Island, Hawaii County Mayor Billy Kenoi will analyze the recent federal court ruling. While his county does not have large GMO seed companies, there is already a law in place to ban GMO crops, except for papayas.

Meanwhile, Maui County Mayor Alan Arakawa is bracing for the struggle over GMOs when voters decide on a ballot initiative in the November general election — one that would call for a GMO ban until officials can conduct a health and environmental study.

What Arakawa does not want for Maui is the emotional battle that was seen last year on Kauai, “because there’s been a lot of bullying going on by people and creating intense ill-will within the community.”

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