A federal judge has struck down Kauai County’s ordinance requiring more disclosure from biotechnology companies about pesticide use and genetically engineered farming practices. The court ruling is a setback for the growing movement against biotechnology companies in Hawaii, where seed corn is the biggest export crop.
U.S. District Court Judge Barry M. Kurren ruled Monday that the Kauai County ordinance known as Bill 2491 or Ordinance 960 unlawfully preempts state law governing pesticide use.
“This decision in no way diminishes the health and environmental concerns of the people of Kauai,” Kurren wrote. “The Court’s ruling simply recognizes that the State of Hawaii has established a comprehensive framework for addressing the application of restricted use pesticides and the planting of GMO crops, which presently precludes local regulation by the County.”
The bill, which required that companies disclose their use of restricted pesticides above certain levels and imposed buffer zones for pesticide spraying around areas such as roadways and schools, was passed 6-1 after an emotional 19-hour hearing last fall. Kauai Mayor Bernard Carvalho vetoed it, but the Kauai Council overrode him.
Carvalho held a press conference Monday at Honolulu Hale along with the three other Hawaii mayors, all of whom were attending a mayoral conference in Honolulu.
He said Kauai attorneys were reviewing the decision, adding he was pleased that the ruling was timely. The law was originally supposed to go into effect Aug. 16, but had been delayed until Oct. 1.
“I always said that I agree with the intent of Ordinance 960 but felt that the ordinance was not proper,” Carvalho said. He said he thought the county could have avoided the $175,000 court case if state, county and various stakeholders had come together.
The ruling calls into question the future of anti-GMO regulations in other Hawaii counties.
Big Island Mayor Billy Kenoi said Hawaii County attorneys are analyzing its applicability to an ongoing case that challenges the Big Island’s ban on any new genetically modified crops. The Big Island passed the ban, which exempts GMO papayas, about a month after the Kauai bill passed.
Laureen Martin, Hawaii County corporation counsel, said by phone Monday that the Kauai ruling is concerning but noted that the Big Island ordinance is different.
Paul Achitoff, an attorney from Earthjustice who helped defend Kauai County, agreed.
“Since it’s the same judge (Kurren) hearing both cases, I frankly am not sure how he is going to view the connection,” Achitoff said.
While Kurren’s decision in the Kauai County case relied upon state pesticide law, the Hawaii County ordinance doesn’t deal with pesticides, Achitoff said.
“I’m not reading (today’s ruling) as precluding Hawaii County from doing what it did,” Achitoff said.
Meanwhile, Mayor Alan Arakawa of Maui County said that the court decision may be instructive for residents who will vote on a county ballot initiative this fall to ban genetically modified crops.
He said Maui County attorneys are also reviewing Monday’s ruling and that he’ll publish an advisory to Maui residents if they determine that the ballot initiative may be illegal.
Many supporters of the Kauai County ordinance said they are disappointed but undeterred by the ruling.
Achitoff, who helped defend the county, plans to encourage his clients to appeal.
“It’s a bad precedent for the people of Kauai and throughout the state that the court has concluded that they cannot defend themselves when the state turns its back on them,” he said.
In a written statement, attorney George Kimbrell from the Center for Food Safety echoed that sentiment.
“This is certainly not the end of this fight; we will continue to do everything we can,” he said.
Gary Hooser, the Kauai councilman who sponsored the bill, also said that he expects the ruling to be appealed.
“It’s just another round in the ongoing battle,” he said. “It’s far from over.”
He criticized the biotechnology companies for not doing more to protect the health and safety of Kauai residents.
“Until these companies act like good neighbors and take steps to honor and respect the community, there’s going to continue to be this ongoing battle,” he said.
For their part, the plaintiffs are pleased with the court ruling and see it as proof that the county can’t legislate their farming practices.
“As we have maintained from the outset, the state and federal government already have comprehensive regulation of pesticides and GMOs and the County of Kauai has no power to regulate in these areas,” said Laurie Yoshida, communications manager for DuPont Pioneer, in an email. Her statement was part of a joint statement issued by all four plaintiffs.
Read the decision below: