Mayor rejects Bill 2491, says it’s legally flawed

LIHUE — At approximately 10:30 a.m. Thursday, Mayor Bernard Carvalho Jr. announced his decision to veto Bill 2491 related to pesticides and genetically modified organisms.

By that time, rumors of an 11th-hour veto had already spread, and dozens of local residents — some crying and others red in the face with anger — had gathered in the atrium of the Moikeha Building.

Their loud chanting even led to a verbal warning from Kauai Police Chief Darryl Perry, who said they could be arrested for disorderly conduct.

While Carvalho supports the bill’s remaining provisions, he questions their legality.

“I agree with you on disclosure,” he shouted, after emerging from a meeting with several bill proponents. “I agree that we need to know what is being sprayed. I agree that we need buffer zones. I agree that we need a study to help all of us. I’m there. The intent of the bill is there.”

Still, he felt a veto was the responsible thing to do — the route he needed to take.

“There are flaws and there are legal issues,” he said of the bill.

Councilman Gary Hooser, who co-introduced the bill in June, said he was surprised by the veto and thought Carvalho understood the urgency of the situation.

“The mayor had an opportunity to settle this issue in a meaningful, modest manner by letting it become law,” he said. “And instead he extends the drama, extends the divisiveness in the community.”

The Kauai County Council passed Bill 2491 on Oct. 16 by a 6-1 vote. It made its way to Carvalho’s desk the following day with a Halloween deadline for a final decision.

The bill requires Kauai’s largest agricultural companies, as well as Kauai Coffee, to disclose their use of pesticides and genetically modified crops. It also establishes buffer zones around schools, hospitals, roads and other sensitive areas, and requires the county to complete an environmental and health fact-finding study on the industry’s impacts.

The mayor spent the last two weeks considering his options, meeting with county attorney Mauna Kea Trask and other staff members.  

In addition to announcing the veto, Carvalho released the county attorney’s legal opinion, which concluded there are “many legal challenges facing” the bill.

“While there is no Hawaii case law directly interpreting the above-listed issues, there is extensive statutory and case law demonstrating a strong likelihood that a reviewing court would declare Bill No. 2491 preempted by superior state and federal statures,” Trask wrote. “Bill No. 2491 may also be an invalid exercise of the police power, and/or violate HRS Chapter 165’s proscription against an official ‘declaring’ such farming operations a nuisance.”

Andrea Brower, an advocate and bill proponent, expressed her disapproval of releasing Trask’s opinion — something the council previously chose not to do. Now, if the council overrides the mayor’s veto and gets sued, the corporations will have the county’s legal playbook, she said.

Bill 2491 has already been reviewed by a large number of attorneys around the county, several of whom even promised to defend the bill for free, according to Hooser. He said the only attorneys he has found that agree with the county attorney’s opinion represent Syngenta and Pioneer.

“I believe we should not not do what we think is right because we are afraid of what some judge or some company is going to do,” he said.

Councilwoman JoAnn Yukimura, who co-introduced several amendments to Bill 2491, said she was very disappointed in the mayor’s decision.

“If there are legal problems with the bill, we need to go to court to get a definitive judicial decision,” she wrote in an email. “A veto does not allow us to get to court.”

Fern Rosenstiel said she and other proponents are not finished fighting.

“Because of every single one of you here, we made it this far,” she told the crowd, many wearing their usual “Pass the Bill” T-shirts and carrying signs. “And we will override the mayor’s veto.”

Standing on the steps in front of the county seal, sweating profusely in the sun, Carvalho faced the music.

“Please, let me speak and then you can do whatever you want,” he said. “Call me whatever names you want.”

Some called him corrupt. Others screamed, “Recall the mayor!” And one man, dressed in a grim reaper costume, told Carvalho to take off his mask.

Sol Kahn said 2491 is not the mayor’s bill, but the people’s bill.

“You don’t have the right to do this,” he told Carvalho.

A visually upset Nate Dickinson told the mayor to come to Waimea Valley the next time his young son is having seizures.

“They don’t know why this thing is happening,” Dickinson said. “And we’re not the only family in Waimea that has that problem.”

“I’m sorry about that,” Carvalho said.

“Are you? Are you really sorry?” Dickinson screamed before storming away.

In his letter to Council Chair Jay Furfaro, Carvalho said he did not make his decision lightly, and that he knew it would be controversial.

“There is much to agree on within Bill 2491, but we must follow a correct and legal path toward reaching our goal of protecting the health and safety of our community,” he wrote. “I do not believe 2491 is the correct and legal path, and therefore I believe it is my responsibility to veto the bill.”

In moving forward and finding common ground, Carvalho is supporting a resolution  for a study of the environmental and health impacts of pesticide use.

In an emailed statement, Alicia Maluafiti, executive director of the Hawaii Crop Improvement Association, commended the mayor for “recognizing the measure was severely flawed.”

“This measure, although intended to be good for the community, would have had long-term negative effects on all agriculture in Kauai and our state, not just the seed industry or big agriculture,” she said.  

Maluafiti added that the HCIA looks forward to working with the mayor and council to address the concerns of the community.

Carvalho also said Thursday that the state Department of Agriculture has been working with the five companies that would be impacted by the bill on voluntary pesticide disclosure and buffer zone guidelines. An announcement detailing those efforts is expected in two to three weeks, he said.

“In conclusion, I would like to state that, despite this veto, I absolutely believe that the spirit of 2491 will be implemented on Kauai in accordance with applicable federal, state and county laws and regulations,” he wrote to the council. “It would be my preference to achieve the goal through cooperation and understanding, instead of through adversarial legal action.”

• Chris D’Angelo, environmental reporter, can be reached at 245-0441 or cdangelo@thegardenisland.com.

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