Mayor Vetoes Pesticide/GMO Disclosure Bill

Kauai Mayor Bernard Carvalho Jr. has vetoed the pesticide/GMO disclosure bill, saying the county does not have the legal authority to enact most of its provisions.

“I do not make this decision lightly, and I know that it will be controversial,” a press release stated. “However, I believe it is the right thing to do given the circumstances before me.”

The news came as a shock to many Bill 2491 supporters, who apparently thought the battle was over when the Council voted 6-1 to approve the bill in the wee hours of Oct. 16 after an emotional and contentious 18-hour meeting.

Bill 2491, Draft 2 has now been returned to the County Council, which must act on the veto within 30 days. Five votes are required to override the veto. Though the bill passed the Council 6-1, Nadine Nakamura, who voted affirmatively, has since left the Council, and Ross Kagawa, who also voted yes, has repeatedly expressed concerns with the measure and could change his vote.

The Council also could amend the bill to address Carvalho's concerns and return it to him for signature.

Carvalho said he agrees with the general intent of the bill, including pre- and post-disclosure of pesticide use, buffer zones and an independent study to determine whether pesticides are harming human and environmental health.

The mayor urged the Council to quickly fund the joint fact finding study group that will lead to the environmental public health impact study (EPHIS) outlined in the bill. He said a resolution on next week's Council agenda could get that process moving, despite the veto.

Though a County Council majority — including bill co-sponsors Gary Hooser and Tim Bynum — previously had voted against releasing the county attorney's opinion on Bill 2491, Carvalho produced a copy to justify his decision. (Link leads to PDF download of news release, mayor's statement and opinion.]

Carvalho pointed to a number of legal concerns, including a prohibition against growing any kind of crops, even those that don't use pesticides, in the buffer zones. He also noted that existing state and federal laws appear to pre-empt the county's ability to enact its own pesticide regulations.

The bill “will also likely be challenged as an invalid exercise of the County's police power, an invalid exercise of the County's ability to regulate public nuisances and/or a violation of the Hawaii Right to Farm Act's prohibition against any public officials” declaring” such farming operations a nuisance, according to the County Attorney's opinion.

Another legal issue stems from the Council's decision to move the bill's implementation and enforcement from Public Works to the Office of Economic Development. Since OED is not a regulatory agency, “the Council would be in violation of the charter by assigning new functions to OED,” Carvalho wrote.

“As I have said all along, I truly believe that we could have accomplished these goals faster and in a legally sound manner by working cooperatively with the state, which has clear legal authority over buffer zones and pesticide disclosure,” he wrote.

Carvalho noted in his letter that that “the state Department of Agriculture has been working with the five companies that would be impacted by this bill on voluntary pesticide disclosure and buffer zone guidelines. We anticipate an announcement of their product in two to three weeks. Governor Abercrombie has informed that he will be seeking funding for additional inspectors that could service Kauai.

These efforts are positive steps forward in realizing the goals of the bill, until the EPHIS is complete and its recommendations can be adopted by the appropriate parties."

The community is “deeply divided over 2491 and we can't allow that to continue," the mayor wrote. "It is my hope that after reviewing the opinion, the reasons for this action will be clear, and we can then focus on finding common ground and moving forward.”

“Since receiving the opinion I’ve spent hours and hours understanding the points raised and questioning our attorneys on the legal issues,” the press release stated. “While I believe a veto is necessary, we can and will find legal means to address these important health and safety issues.”

Though Blake Drolson of GMO Free Kauai sent out a last-minute email urging people to show up in force at the mayor's office for his announcement, only about two dozen protesters were on hand. Drolson's email stated:

If the Mayor chooses to VETO the bill, we need to fulfill our kuleana and show our disapproval.  

After all, our children need to know that we will protect them.

And our community needs to know that democracy exists on Kauai.

The group also was running an survey on whether the mayor should be recalled. It asked people to click either YES, The Mayor needs to honor the Council's 6-1 decision, or NO, The Mayor does not need to honor the Council's 6-1 decision.

Others on Facebook posted comments about how the mayor was "committing political suicide" and will pay in 2014, though both assertions are doubtful, given that no one has yet emerged to challenge his re-election and few of those active in the pro-2491 were Carvalho supporters, anyway. One of the Biotech Babes — a resident of Oahu — posted a photo saying "enjoy your permanent vacation from office. Shame on you," along with the message:

RECALL GMO GROUND ZERO MAYOR of Kauai! "Uncle Bernard" sells out entire Ohana and poisoned kids to GMO pesticide companies and will veto Bill 2491, he will not protect children or adults, land or sea from poisoning, he MUST BE RECALLED. ALL WILLING DOOR TO DOOR CANVASSERS EMAIL BABESAGAINSTBIOTECH@GMAIL.COM AND MAKE SURE YOU ARE REGISTERED TO VOTE AND YOUR ADDRESS IS UPDATED. WE CANNOT TOLERATE THE WILLFUL ENDORSEMENT OF THE CONTINUED POISONING OF KAUAI. 

Some have said that a veto could also energize the movement for a referendum. However, the last two referendums approved by Kauai voters were defeated in legal challenges, despite overwhelming voter approval.