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After a marathon hearing, the Kauai County Council passed a hotly debated bill on Wednesday that could lead to prison time or fines for employees of agricultural companies if they don’t divulge specifics about pesticide use, abide by strict setback rules for spraying chemicals or disclose when they grow genetically engineered crops.
The council voted 6 to 1 to make Bill 2491 into law. The lone vote against the bill came from Councilman Mel Rapozo, who said the measure unfairly targets biotech companies and sets the county up for lawsuits.
The law is set to take effect in nine months — with or without the mayor’s signature, because bills receiving five or more votes are veto-proof. (That said, the bill could theoretically run into trouble if members of the council who voted in favor of the bill defected in a vote to override a mayoral veto.)
The hearing, which began at 9 a.m. on Tuesday, lasted nearly 19 hours. As the deliberations stretched on, council members grew tired and cranky, and the audience became raucous enough that Council Chair Jay Furfaro threatened to evict members of the audience if they didn’t settle down following the testimony of Mayor Bernard Carvalho.
But the excitement of Kauai residents was clear well before the hearing even began. Some camped out overnight on the lawn in front of the Kauai County Building to make sure they would have a seat in the small, upstairs hearing room.
Supporters of the bill erupted in celebration of the vote, which came at 3:35 a.m., following the culmination of a hearing in which about 100 people argued for one side or the other. Cheers echoed inside the hearing room, while others could be heard on the front lawn where the public had remained around loudspeakers to listen to deliberations.
“To the seed companies, I want to make sure you understand that we have to envision the future for our island,” said Council Chair Jay Furfaro minutes before the vote. “Your companies have your policies. But we need to envision Kauai in the future and this is a start for us.”
The bill affects the heaviest users of restricted use pesticides, including the four biotech companies that operate on the island: Syngenta, DuPont-Pioneer, Dow and BASF, as well as Kauai Coffee Co.
The law will force those companies to disclose what pesticides they are using, where and in what quantities. It sets up buffer zones between fields sprayed with pesticides and public areas, including schools, waterways, parks and hospitals, and requires companies to notify the public before they spray. The county will also be obliged to conduct health and environmental studies to asses the potential effects of pesticide use. All farmers will have to publicly disclose any genetically engineered crops that they grow.
The bill passed over the objections of Mayor Bernard Carvalho after the council rebuffed his suggestion that it delay voting on the measure for one month so that he could finish working out a deal between state officials and the biotech companies that would lessen the county’s financial and logistical burdens in enforcing the bill.
At 3:00 a.m., Councilwoman Nadine Nakamura, who was recently appointed managing director for the mayor, appeared as if she was going to make a motion to delay the vote. “I’m proposing this just because I know in a few weeks I am going to have to be involved in implementing this law,” she said. Nakamura expressed concerns that the bill would be too hard to implement and be a magnet for lawsuits.
But she was sharply rebuked by other councilmembers. Councilman Gary Hooser, who co-introduced the bill with Tim Bynum, said he was “flabbergasted to put it mildly.”
Bynum choked up with emotion even as the anger of supporters of the legislation erupted into screams of “Pass the Bill!”
“Until you resign, you represent the people of Kauai,” Bynum said, “and for you to say that you have to consider that next week you are going to work for the mayor and will have to implement this is highly inappropriate and unethical.”
Council Chair Furfaro stood up to try to calm the unrest.
The motion for a delay was never put up for a vote and Nakamura ultimately voted in favor of the bill.
Carvalho, who sat through the entire hearing, expressed concerns that Kauai does not have sufficient personnel or funding to properly implement the bill. The mayor’s office estimates that it will need to come up with $1.3 million by the middle of next year to fund various measures in the bill.
While the state has come under fire from county council members for lax oversight of pesticides, Carvalho told council members Tuesday that he had assurances from the state that it would improve.
Last month, the governor issued a statement to say that he would work toward the creation of voluntarily pesticide disclosure guidelines and buffer zones that the biotech companies would agree to comply with. Carvalho said at the hearing that he received assurance this week from Russell Kokubun, chair of the state Department of Agriculture, that the state would implement the new guidelines by the end of October.
“I believe this is going to be a model for the whole world to see,” Carvalho said in his effort to persuade the county council. “And I would hope that this model would be to work it out and bring people together.”
But council members remained skeptical about the state’s commitment to expanding and enforcing pesticide regulation, and they questioned the biotech industry’s willingness to compromise, given its staunch opposition to the bill.
“Frankly, everyone else is a little bit late to the dance,” said Hooser. “We’ve been working on this for months. The governor shows up three weeks ago and Kokubun shows up ten days ago.”
Critics accused the governor and state officials of intervening late in an effort to derail the bill.
Conversely, biotech companies argue that they are being unfairly targeted and that there is no substantive scientific basis for what they see as the council’s legislative attack on their work. They also expressed concerns that if Kauai passed the bill, it could lead other counties, states or nations to follow suit.
Attorneys for the biotech companies said during the hearings that aspects of the bill are “vague and ambiguous” or amount to an “illegal taking” of property.
Council members said that they expect biotech companies to file lawsuits in response to the bill’s passage.
(Small farmers are exempt from the bill’s pesticide provisions.)
Earlier this month, nine local attorneys, including prominent environmental lawyers, released a statement urging council members not to bow to pressure from the biotech companies.
“We believe that Bill 2491 is sound, and the mere threat of a lawsuit by industry interests should not prevent the council from taking action they believe is important to their community,” the statement read.
An attorney for Kauai provided the county council with a 66-page brief outlining his view of the bill’s legality. Council members voted 5-2 on Tuesday to keep that document confidential, noting that it could undermine the county’s arguments if Bill 2491 ends up in court.
The Hawaii Crop Improvement Association, a trade group for the biotech companies, issued a statement shortly after the vote expressing disappointment in the bill’s passage.
“After months of constructive dialogue, our companies, employees and their families are extremely disappointed in the Kauai County Council for passing Bill 2491 and for not recognizing the opportunity presented by Mayor Carvalho and Gov. Abercrombie,” the statement read.
“If 2491 becomes law, the County of Kauai will find itself mired in duplicative rules and regulations it does not have the resources to enforce. What’s more, an entire industry – one that employs 600 residents and is a major driver of the island’s economy – will be put at risk.”