County can’t regulate pesticides

LIHUE — Hawaii counties and cities don’t have the authority to regulate genetically engineered crops and pesticide use, according to a decision handed down Friday from the U.S. Court of Appeals. That power is in the hands of the state, at least when it comes to commercial GE crops, according to the ruling.

Circuit Judge Consuelo M. Callahan upheld a lower-court decision that said Hawaii law prohibits counties from regulating agricultural matters.

The decision was praised by the Hawaii Crop Improvement Association.

“Although we continue to review the decision, we believe that the court of appeals was correct in its conclusion that the individual counties lack the legal authority to regulate in this area,” said Bennette Misalucha, HCIA executive director.

She continued: “This is good news for local agriculture in Hawaii, as it clears up potential confusion over who has jurisdiction in regulating agriculture operations, leaving that responsibility with the appropriate government agencies.”

Three cases were decided on Friday involving Kauai, Maui and Hawaii counties concerning various levels of GE and pesticide regulations passed by the entities.

Kauai’s case involves Ordinance 960 (Bill 2491), which required buffer zones and pesticide-notification requirements, while the Big Island banned open-air testing of GE organisms and Maui County banned cultivation and testing of GE crops.

The Kauai ordinance went into law in 2013 after being vetoed by Mayor Bernard Carvalho Jr. The veto was later reversed by the County Council.

Friday, Carvalho expressed relief about the court’s decision.

“Today’s ruling brings an end to a very divisive issue both on Kauai and throughout the entire state,” Carvalho said. “My decision in 2013 to veto Ordinance 960 was based on reviewing all sides of the issue, and most importantly, understanding the legal aspects. In the end, I felt compelled to do what was best for all of Kauai and ultimately to follow the law as I understood it to be.”

Major agriculture companies challenged the county laws and Friday, the court said those rules were pre-empted by state laws that regulate possibly harmful plants.

“We’re disappointed that the court misinterpreted Hawaii law and concluded the Hawaii Legislature decided Hawaii counties lack any such authority,” said Earthjustice attorney Paul Achitoff.

Kauai Councilman Gary Hooser, who had a hand in writing and supporting Ordinance 960, said he’s disappointed as well.

“Though Hawaii state government has failed miserably enforcing even the modest regulations that do exist, county governments in Hawaii are prohibited by law from stepping forward to protect their citizens from pesticide exposure,” Hooser said.

The results are disappointing for those who have spent the past three years supporting Kauai’s Ordinance 960, but proponents of GE and pesticide management said they accomplished great things in the meantime.

Some of those things include increased public disclosure of pesticide use by the chemical industry, increasing the distance between schools and other community gathering places and GE test fields, and some cash for community organizations.

The investigation leading up to the introduction of Bill 2491 in Kauai led to a discovery of unpaid property taxes owed by some of the seed companies and that brought hundreds of thousands of dollars to county coffers, Hooser said.

“The net effect is that the approximately $220,000 cost to the county for defending the measure has been more than offset by the companies themselves,” he said.

Fern Rosenstiel, who also had a hand in developing the bill, said she’s happy to see the “court recognizes the harms associated with pesticides and the cultivation of GE crops,” though she’s disappointed with the ultimate decision.

“With the ruling clearly laying the responsibility to adequately regulate these issues on the state government, we must call on our government to act,” Rosenstiel said. “Only the state government can ensure that suitable regulations are put in place that preserve and restore our land, air and water and protect our people.”

Working together to send a message to the state government is also the goal of Joanna Wheeler, with GMO Free Kauai, who said she thinks the court’s decision is “absurd.”

“I expect people to get organized and protect our rights,” Wheeler said.

The first step for those who want to continue with the movement of pesticide and GE crop regulation in Hawaii is to turn to their legislative representatives, Hooser said.

“The next step is up to us,” he said.

One lawmaker said “there’s a middle road that can satisfy everyone that ensures public safety and doesn’t put an undue burden on anyone.”

“What the decision makes clear is that it is the state’s responsibility to meaningfully protect against undue harm from pesticides, whether it’s to workers on a field or to kids in schools nearby, and we have an obligation to make sure that safety is paramount,” said state Rep. Chris Lee, chairman of the state House Committee on Energy and Environmental Protection.

Others planned to fight on.

“As a mother and a resident of Kekaha, Kauai, I will continue to stand up and protect my family and my community,” said Malia Kahaleina Chun, a mother, educator and Native Hawaiian cultural practitioner, in an emailed statement. “It is our responsibility to insure that our keiki (children) have access to clean air, clean water and the aina (land) that sustains them.”

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The Associated Press contributed to this report.

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