Judges hear GMO, pesticides debate

HONOLULU— Fern Rosenstiel said Wednesday’s 9th Circuit Court of Appeals hearing has been a long time coming.

That’s because the federal appellate court heard three cases dealing with pesticide labeling and GMO laws created by Hawaii, Maui and Kauai counties.

“It’s been almost four years of effort since I started working on this and there’s definitely a feeling that this is a monumental landmark,” Rosenstiel said. “It’s an unprecedented case that’s making history.”

The Kauai woman was in the courtroom throughout the entire hearing.

“When they started calling up Bill 2491, my heart started to pound,” Rosenstiel said. “They had a lot of questions, which is good, but it’s hard to know what the ruling will be.”

Teresa Tico, an attorney from Kauai who has spent several years working within the environmental realm, was in the courtroom on Wednesday as well.

“Obviously all of these cases are very important. However the judges rule, there will be a huge precedent for the entire 9th circuit,” Tico said. “It’s the largest federal appellate court in our country, so their decision will impact a lot of state laws.”

She said there was standing room only during the hearing, and some people had to sit outside and watch the live stream feed. Even with a packed house, however, the atmosphere was civil.

Paul Achitoff, Earthjustice lawyer who argued both the Kauai and Hawaii county cases, said the federal appellate court’s decision could run the gamete from allowing counties full control on GMO and pesticide regulation all the way to the counties having zero control.

“(The judges could rule) no control because the state preempts the counties, in which case the state theoretically could pass a law that does regulate GMOs,” Achitoff said. “If the federal government preempts the state, it doesn’t even have that option.”

Kauai Councilman Gary Hooser, who was involved in drafting Bill 2491, said he thought the issue of preemption was made clear at the hearing.

“Paul Achitoff did an excellent job explaining that both state law and the state constitution not only do not preempt the county from regulating pesticides, but actually require the county to protect health and environment,” Hooser said.

The Hawaii Crop Improvement Association represents the agrochemical companies that are challenging the county laws — BASF Agrigenetics Inc., DuPont Pioneer and Syngenta.

Bennette Misalucha, director of HCIA, said the organization is looking forward to the outcome of the hearings and is “optimistic that the U.S. Court of Appeals will affirm the district court’s judgment.”

She pointed out the district court said the decision doesn’t diminish the health and environmental concerns of Kauai’s citizens, but it recognizes the state of Hawaii has established “comprehensive framework for addressing the application of restricted use pesticides and the planting of (GE) crops.”

Beth Tokioka, spokeswoman for Syngenta, said the company appreciated the opportunity to present their views before the appellate court.

“As we have said from the outset, our activities are already regulated by governmental agencies under state and federal laws, and the County of Kauai has no authority to regulate in this area,” Tokioka said. “We believe Magistrate Judge Kurren was correct in determining the ordinance is preempted by Hawaii state law and, therefore, invalid in its entirety.”

Now that the court has heard arguments from both sides of the pesticide and GMO regulation laws, the three judges will eventually deliver a verdict. Some say it could take up to a year.

Achitoff said he’s hoping for a ruling within the next few months.

“I don’t know what they’re going to do,” he said. “I’ve learned from experience you can’t tell much from what they say and do at the arguments.”

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Jessica Else, environmental reporter, can be reached at 245-0452 or jelse@thegardenisland.com.

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