Musings: Pawns

It was never more apparent that Kauai is a pawn in a bigger battle than when mainland-based nonprofits moved this week to intervene in the defense of our controversial new pesticide/GMO regulatory law.

Through the motion filed in federal court, Earthjustice, Center for Food Safety, Pesticide Action Network North America and Surfrider are trying to stay aboard the train they built, engineered and promoted, with Councilman Gary Hooser waving from the caboose and calling “all aboard.”

The motion states the ordinance goes to “the core of Proposed Intervenors' organizational interests.” And therein lies the rub. What's good for the national political agendas and fund-raising desires of PANNA, Surfrider, Earthjustice and CFS isn't necessarily what's best for little Kauai and our citizens.

Heck, we could have created buffer zones simply by amending the zoning ordinance. But that wouldn't have given Gary the national exposure he sought. And when Gary chose to align himself with the mainland groups — he's now actively shilling for CFS — he signed all of us up for the ride, too.

To make it seem like it's still about us, rather than their national agenda, they also brought in a new “community group” — Ka Makani Ho`oponopono — comprising people who live and work near the seed fields, and so “have unique personal interests in the transparency and protection guaranteed by Ordinance 960,” according to the motion.

But wait. Wasn't the bill written expressly for those very same people? Because if it was about protecting Kauai from pesticides, it wouldn't have targeted just five agricultural companies on the leeward side.

At least now the mainland groups are finally admitting, in their motion, that they “vigorously supported” the bill, helped write it and "actively participated in the legislative process to ensure its passage.” The admission finally exposes as false the insistent claims that the “red shirt” movement was a spontaneous, leaderless, local initiative.

The motion claims the county “does not share, and will not adequately represent” the proposed intervenors, which have “substantive interests in ensuring Ordinance 960's implementation.”

That's new. Because Hooser told me himself, when I expressed concerns about implementation: It doesn't matter if the law is enforced, all that matters is getting it passed.

As supposed proof of the county's lackadaisical approach, a press release issued by Earthjustice and CFS notes that although the chem companies sued the county in January, “six weeks later, the County has yet to even retain counsel to defend itself....”

Hmmm. As I recall it, the county's hiring of special counsel was delayed first by the promise of pro bono representation, a charade that fell apart, and second by attorney Lance Collins and his protest of the pro bono procurement process. Curiously, though Lance claimed he was working solely on his own, the motion references the gist of his protest as evidence of the county's attorney's intent to “undermine the County's defense of Ordinance 960.”

The motion also references the 5,500 pounds of restricted use chemicals annually applied by the companies — which again exposes as false the “18-ton” (36,000 pounds) figure that Gary intentionally introduced into local lore.

But despite its kernels of truth, the motion's “factual background” section contains a lot of unsubstantiated statements, including:

The constant application of pesticides...has detrimentally affected human health and the environment on Kauai. Pesticides drift beyond fields of application to pollute neighboring lands, harming, plants, wildlife and people.

Yet the only "proof" offered is a declaration from Malia Chun that she developed adult asthma after moving to Kekaha, and her daughter suffered bloody noses and doctors couldn't diagnose the cause.

As a related aside, Chris D'Angelo of The Garden Island yesterday reported Mark Sheehan from Maui claiming:

“On Kauai, for example, a documented correlation has been made between rising levels of pesticide application and rising incidences of birth defects."

Though I asked both Chris and Mark for verification of that “documented correlation,” neither responded.

Similarly, in his declaration, Surfrider President Gordon LaBedz claims the Kauai chapter “paid for some very expensive preliminary tests for pesticides and we found toxic levels in a number of streams.”

But Carl Berg, the group's vice president, recently told me the results had been “inconclusive.”

In a communique posted on Facebook, this is how CFS solicited participation in the motion to intervene:

In order to act, CFS and our community needs your help!

Are you aware of bill 2491? Are you concerned about the risk to yourself and/or your family’s health or the environment from pesticide spraying? Do you live near spraying or have you experienced adverse health effects previously that you attribute to unregulated and undisclosed pesticide spraying? Do you think it has damaged your property or native environment? If so we’d love to hear your story.

Except, how could you attribute your health effects to something you weren't even sure had happened, since it was “undisclosed?”

Ultimately, the court will decide whether the groups meet the four-part test for intervention by right:

The application must be timely; the application must have a significant protectable interest; the application must be situated that disposition of the action may, as a practical matter, impair or impede the application's ability to protect that interest; and the applicant's interest must be inadequately represented by the existing parties in the lawsuit.

The motion contends the mayor already made it clear he won't be representing those interests  when he vetoed the bill and declared it "legally flawed."

The motion also claims the intervenors “will offer unique elements to the present litigation not shared with—and in fact neglected by— the existing parties.” But since the county hasn't responded to the complaint yet, we don't know what elements it will include in the litigation.

What we do know is despite all the angst, money and energy devoted to this issue, Kauai residents are no closer to knowing whether the chem companies are actually poisoning us, much less getting any relief if they are.

But it's working out just fine for the self-interested "public interest" groups that are playing a bigger, different game.