The ebb and flow of Bill 2491 – people, industry and state neglect

Even though the state of Hawaii has been negligent in its duty to protect our community, a federal judge ruled last week that only the state has authority to protect the health and environment of our community from the long-term impacts of the intensive application of restricted use pesticides.

According to the court, Kauai County is not allowed to step in to protect its citizens nor the environment from the impacts of pesticide use, misuse or abuse.

This ruling by Judge Kurren represents a win by industry. Though I am sure the corporate executives in Indianapolis, Ludwigshafen, Germany, Basel, Switzerland and Johnston, Iowa, are “high-fiving” each other over beating our little island on this round, the win, to be sure, is ultimately a hollow one.

The regulation of industry to protect the safety of workers, the health of residents and the preservation of the environment is a fundamental obligation of government. The cost of defending Ordinance 960 is a concern of many that I share, but given this fundamental obligation and when put into context, it is a relatively low amount. The lawsuit has been resolved to this point for an amount much less than other lawsuits the county is defending on issues much less far-reaching as protecting the health and safety of our community.

Also, the costs are being essentially offset directly from those companies that filed the lawsuit against us. Most are not aware but in the process of passing Bill 2491, the council discovered significant uncollected tax revenue due from these companies which is now being collected.

Residents of West Kauai have been complaining to the state about pesticide drift and the impacts for over a decade. Despite repeated requests, the state refuses to fund additional inspectors. It takes two to three years for the state to complete investigations of pesticide abuse and the state birth defect registry has not been updated since 2005.

Ordinance 960 was a modest attempt to deal with those concerns by requiring disclosure, buffer zones and a study to determine health impacts. Rather than disclose to our community the quantities and types of pesticides they are spraying and allow us to study those potential health impacts, the companies have done everything possible to keep this information hidden.

It should be noted that unlike the four chemical companies, Kauai Coffee was not part of the court action and was prepared to comply with the law.

There is no shortage of red flags that point toward negative impacts of this industry and the need for disclosure, buffer zones and a health study.

There are medical doctors who treat expectant mothers and deliver babies at the Kauai Veterans Memorial Hospital in Waimea who believe there is 10 times the national average of a rare heart defect among their patients with newborn children. This is on the public record both as testimony and on video interviews with independent journalists.

On several occasions, students, teachers and staff have became ill at Waimea Canyon Middle School after or during times when pesticides were being applied in adjacent fields.

There was a “die-off” of over 50,000 sea urchins verified by local aquatic biologists on the shore subject to this pesticide runoff.

Approximately 150 long-time residents of Waimea Town are suing DuPont Pioneer because of negative health impacts they believe are a result of the companies’ pesticide applications.

A majority of Kauai pediatricians, the Hawaii Nurses Association, the Hawaii State Teachers Association, Local 5 Hotel Workers and many, many other groups and organizations submitted testimony in support of Bill 2491.

Yet, the state of Hawaii’s response to these concerns has been abysmal to non-existent.

During the discussions of Bill 2491, numerous legal opinions were sought. All, including the county attorney agreed: There was no state or federal law expressly denying the county the authority to regulate pesticides, and no court had ever ruled on the issue with regards to Hawaii’s situation. In other words, there is no state or federal law that says Kauai County may not regulate pesticides. The county attorney’s opposition to Bill 2491, which was made public by Mayor Carvalho (and used by Syngenta in their oral arguments), cited the possibility of implied pre-emption but the question at the time was not “settled law” and the intent of the state was subject to interpretation.

Judge Kurren concluded that even though there is no state or federal law that says the county may not regulate pesticides, the state intended to retain exclusive authority over pesticide regulation. In other words, even though the state did not say it directly, that is what they meant to say. The judge also ruled that numerous other claims made by the companies had no merit, including federal pre-emption and the Right To Farm Act.

I believe the county must be willing to stand up to the threats from industry when there are threats to health and environment. If the county isn’t willing to respond to industry lawsuits, then we’ll have only laws that are acceptable to industry. If this is the case we might as well just hand the county government over to them.

As Kurren said clearly, “This decision in no way diminishes the health and environmental concerns of the people of Kauai.”

It is unfortunate that the agro-chemical industry neither acknowledges nor respects those same concerns.

This issue is far from being over and our community’s resolve to protect the health and environment of our island home has likewise not been diminished but only strengthened.

We are blessed to live in one of the most beautiful places on the planet. As a community, we need to come together to resolve those concerns that have been acknowledged by Judge Kurren – as this issue is not going away until dealt with appropriately.

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Gary Hooser is a Kauai County councilman.

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