Deferral could possibly forward Bill 2491

Deferral does not necessarily mean killing Bill 2491.

Many citizens were impatient and angry when Bill 2491 was deferred at the first committee meeting on August 5. “Just pass the bill!!” people cried, condemning the councilmembers who voted for deferral for being “against the bill.”  In retrospect, that was jumping to conclusions.

If the council had done as was demanded, we would have a bill that provides for annual, rather than weekly, pesticide use disclosures and an EIS that would cost a million-plus dollars without providing the data or community buy-in that we really need.   

Or, Bill 2491 might be dead by now. I believe the amendments proposed by Council Vice Chair Nakamura and me have kept the bill alive by strengthening certain provisions and focusing on the areas that have the most community consensus — i.e. pesticide disclosure, buffers and the need for a well-conducted study.

Another deferral could strengthen our efforts once more.

Let me explain the possibility.

State law says:

“Notwithstanding any law, rule, or executive order to the contrary, the chairperson of the board of agriculture, in consultation with the advisory committee on pesticides and also with the approval of the director of health, shall suspend, cancel or restrict the use of certain pesticides or specific uses of certain pesticides when the usage is determined to have unreasonable adverse effects on the environment.” — HRS 149A-32.5

This provision could be very reasonably interpreted as an express preemption that prohibits county government from regulating pesticides. I have said, however, that we should go to court to find out what the law is. But the situation is not a slam dunk. What if the courts find preemption? Then where will we be after all this effort and agony?

Working with the Department of Agriculture over the next two months could give us a contingency plan to effectuate the law in the fastest way possible. If we get the Department of Agriculture to work with us, we might avoid preemption because they are allowed under state law to have cooperative agreements with other entities. Or if — because the mayor and council are united in requesting their cooperation and the Kauai legislators have expressed their concerns — we secure their understanding of the urgency of this issue and their commitment through a memorandum of agreement (MOA), then if the courts find preemption, the Department of Agriculture will already be committed to work on this issue. They could adopt the provisions of Bill 2491, or something similar, into their rules and take it from there, with all of us watching.  There are no guarantees, but we don’t know unless we try.

Unless a majority of the County Council and Mayor Carvalho commit to passing and enforcing Bill 2491 in two months, I will not vote for a deferral. If, however,  we have a commitment to pass a bill at the end of two months if a memorandum of agreement to implement the provisions of Bill 2491 is not signed by then, it might be wise to give that option a try.

• JoAnn Yukimura is a member of the Kauai County Council.

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