HONOLULU — The authority of counties within their borders and the rights of corporations are going to be on the line Wednesday at the U.S. 9th Circuit of Court Appeals on Oahu.
Three different county laws are going before the federal appeals court, including Kauai’s pesticide disclosure law, in a hearing that will decide how much authority Hawaii counties have within their own borders.
The federal appeals court is scheduled to hear oral arguments in the cases from attorneys representing Hawaii, Maui and Kauai counties.
“Each one of (the counties) stands to have its ordinance upheld or stricken,” said Paul Achitoff, attorney with Earthjustice who will be defending Kauai’s Bill 2491 at the hearing. “However, that’s just sort of on a county level. There are rulings that are an issue here that suggest federal law preempts not only county, but also state law.”
Achitoff said there are two extreme scenarios that could come out of the hearing. On one end, the court could rule that only the federal government can regulate genetically engineered crops.
On the other side of the coin, the court could decide to uphold all of the ordinances enacted by the three Hawaii counties.
“If we run the table, that’s the other extreme — these ordinances will spring back to life and it will definitely be a boon for home rule,” Achitoff said.
Whatever the result, the ruling could have far-reaching consequences that impact more than just the state of Hawaii because the 9th Circuit Court of Appeals is ruling on an issue that hasn’t been decided.
“There are things at stake here for the counties and the state as a whole, but potentially for the rest of the country,” Achitoff said. “The potential ruling would be that no state, let alone any county or municipality, has any authority to regulate GE crops at all.”
On Kauai, those in opposition to the activities of the island’s agrochemical industry are on the edge of their seats, awaiting Wednesday’s hearing.
“I would like for the will of Kauai to be respected, for people to be able to protect their children and have peace of mind,” said Joanna Wheeler, of GMO-Free Kauai. “We would like to know that our children’s health is more important than the bottom line of the Big 6 (agrochemical companies).”
The judges who oversaw the federal district court cases had invalidated the county bans on GMOs and ruled that state law pre-empts county law on the issue. Hawaii and Kauai counties had their anti-GMO laws struck down in 2014, while Maui’s ban was thrown out in 2015.
Kohala Councilwoman Margaret Willie, who authored the original Hawaii County bill limiting genetically modified organisms, disagreed with the judge’s ruling. She said it imposed on the county’s ability to protect the health and safety of its citizens.
“I would hope that people could see the pre-emption issue is totally bogus,” Wille said Friday. “There was no state law that would have pre-empted what we did.”
For agrochemical companies Dupont, Syngenta and Agrigentics Inc., the hearing is a test of their own rights to conduct business.
Representatives from Syngenta said the company will be releasing a statement after the hearing, and declined to comment on the lawsuit before the court date. Representatives from the Hawaii Crop Improvement Association, which represents the three agribusiness companies, said they’d be sending out a news release after the hearing as well.
Kauai County led the pack with its 2013 law requiring the full disclosure of Restricted Use Pesticides by large users, plus a requirement of buffer zones around schools and hospitals, as well as streams and coastal ecosystems.
“Ordinance 960 simply requires basic disclosure of Restricted Use Pesticides, plus provides for modest buffer zones around schools, hospitals and other sensitive areas. It is an unfortunate indication as to the nature of their corporate character that Syngenta, DOW, BASF and DuPont have chosen to sue the people of Kauai County rather than follow the law,” said Kauai County Councilmember Gary Hooser.
In November 2014, Hawaii County followed with a partial ban on GMO farming, and Maui County jumped on board with a moratorium on GMO crop cultivation until more research could be conducted.
“All three counties’ cases are being argued back to back to back,” said Honolulu attorney Paul Alston, who represents biotechnology concerns. “It should be a pretty intense morning for the court and for the public.”
The Associated Press contributed to this report.