Splitting over a study

LIHUE — Whether the county should — or can legally — move forward with the Environmental and Public Health Impact Study portion of Ordinance 960, in light of a court ruling that struck down the county law, is up for debate.

Kauai County Councilwoman JoAnn Yukimura, who co-introduced the resolution for the EPHIS, says the county should press forward with the study.

“A successful EPHIS could lay the foundation for significant progress on this vital topic,” she said in a statement. “Implementing a consensus-building process based on sound, objective research, Kauai County could still lead the way on this issue of great community concern.”

On Aug. 25, Magistrate Judge Barry M. Kurren ruled that Ordinance 960, a county law regulating the use of pesticides and genetically modified crops, was pre-empted by state law, but not federal law, and therefore invalid.

Yukimura said that nothing in Kurren’s decision invalidates the fact-finding and research initiated by the County Council and authorized and funded by two council actions independent of Ordinance 960 that appropriated $100,000 for the process.

County administration, however, sees things differently.

Spokeswoman Beth Tokioka said the administration’s understanding is that the ruling keeps the county from moving forward on any aspect of Ordinance 960, including the EPHIS and the Joint Fact Finding Group, which would ultimately guide the study.

“To date, no money has been spent on either the EPHIS or the JFFG,” Tokioka wrote. “Mayor (Bernard Carvalho Jr.) is currently exploring other ways in which the study could be accomplished which would be legal in the eyes of the court.”

Councilman Ross Kagawa said it is not the county’s job to regulate big agriculture and he is “totally against” spending any more money on Ordinance 960.

“Why are we going to have to do an EPHIS to determine what we may think is wrong?” he asked. “And then what are we going to do about it?”

Resolution 2013-72 — introduced by Yukimura and former Councilwoman Nadine Nakamura — calls for the county to fund a “qualified neutral facilitator to convene and facilitate a Pesticide and Genetic Engineering Joint Fact Finding Group.”

That group would be comprised of at least 12 individuals “with knowledge and expertise in the fields of science, medicine, economics, culture, environment, and community stakeholders.” It would be responsible for designing and overseeing an EPHIS that addresses “environmental and public health questions related to large-scale commercial agricultural entities utilizing pesticides and genetically modified organisms.”

Yukimura said she thinks the only way to move forward with the EPHIS is to seek clarification from the court, which could come in the form of an appeal. Her understanding of law, however, is that pre-emption applies to regulation and not joint fact-finding or gathering of information. The County Council, meanwhile, is scheduled to be briefed in executive session Wednesday by special counsel to determine whether to appeal Kurren’s decision.

In the end, Yukimura said she believes those on both sides of the debate would be more comfortable with hard data, and that the EPHIS would be an attempt to get there.

“(It) was an attempt to approach the issue in another way, and get more data that would inform our regulatory efforts,” she said. “I’m hopeful that we can still do that.”

In January, the island’s four biotech seed companies — Syngenta, BASF, DuPont Pioneer and Agrigenetics Inc., a company affiliated with Dow AgroSciences — filed suit in U.S. District Court in Honolulu, arguing the county violated the United States and Hawaii constitutions, multiple federal and state laws and the Kauai County Charter in passing the bill.

Passed via a veto override in November and slated to go into effect Oct. 1, Ordinance 960 (formerly Bill 2491) required large agricultural companies to disclose pesticide use and the presence of GMO crops, as well as establish buffer zones around sensitive areas, including schools and hospitals.

Attempts to contact company representatives Monday were unsuccessful.

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Chris D’Angelo, environment writer, can be reached at 245-0441 or cdangelo@thegardenisland.com.

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