Musings: On Pre-Emption

Magistrate Judge Barry Kurren wanted to hear attorneys argue the issue of pre-emption today as multinational ag/chem companies sought to strike down key provisions in Kauai's new GMO/pesticide regulatory bill.

Pre-emption is the primary issue, as the judge's ruling will determine whether the counties even have the power to make such a law. If they don't, the law is dead and efforts to regulate GMOs on a local level will have been dealt a severe setback. The case has drawn considerable attention due to its state and national implications.

Former state Attorney General Margery Bronster, representing the corporations, maintained the state and federal governments have clearly pre-empted the county's authority to regulate pesticides and GMOs.

“We are an allocated-authority state,” she said. “All power not reserved for the federal government resides in the state. And the state Constitution says the counties only have the power the state gives them. You have to find specific grants of authority.”

The regulation of GMOs is a federal responsibility, she said. “But whether it's federal or state, there's nothing left over to delegate to the counties.”

It's the same legal conclusion that was reached by the Kauai County Attorney's office, prompting Mayor Bernard Carvalho to veto Bill 2491. But the County Council, after bringing in a new member who supported the bill, voted to override the veto.

Though Syngenta, Dow, Dupont-Pioneer and BASF are suing Kauai County, it was primarily Earthjustice attorney Paul Achitoff who argued in defense of the law. Earthjustice and Center for Food Safety were allowed to intervene on behalf of Surfrider, Pesticide Action Network and a newly formed westside Kauai group.

As I've pointed out previously, national groups — and Kauai Councilman Gary Hooser — are orchestrating the anti-GMO battle while Kauai residents pick up the tab and suffer the social upheavals of having a war waged on their little island. The Kauai County Council today approved another $50,000 in legal fees for the case, bringing the total thus far to $125,000.

At issue is whether anti-GMO forces will be able to regulate biotech crops at a local level, having failed to make substantial headway on the national front. The groups put out the call to have people pack the courtroom today, and it was standing room only.

There was considerable courtroom discussion about whether the corporations had to prove the county doesn't have the authority, or the county has to prove that it does.

Hawaii law gives the state Department of Agriculture, the Board of Agriculture and the Agribusiness Development Corp. very detailed authority and power over pesticide regulations and agricultural activities, Bronster said. “We believe that in and of itself means the county is not intended to have that power.”

Achitoff, on the other hand, argued the county does have the power to regulate health and safety issues.

It's interesting that Earthjustice is now focusing so heavily on county authority. A decade ago, when he was suing the state to learn whether the companies were growing biopharmaceuticals, Achitoff was arguing the state needed to exercise more of its power rather than letting the feds call all the shots.

In seeking a summary judgment, the companies are asking the judge to consider seven claims, including whether the law should be struck down because it was improperly passed, violates the Kauai County Charter and denies their Constitutionally protected rights to due process and equal protection.

Though any one of the claims could derail the law, Kurren does not have to rule on all seven to issue his decision on the request for summary judgment. Though Kurren did not say when he would issue his order, he is aware that both parties agreed to delay the law's implementation from August until October. Both sides also agreed to have Kurren hear the case because federal judges did not have time to give it a prompt, yet thorough, review.

I asked Bronster whether the state planned to join the ag/chem companies in their suit, since its authority was at stake.

“We have reached out,” she said. “This is a political issue, and it may not be one of the things they want to jump into, especially in an election year.”

Meanwhile, the County Council today pre-empted Kauai Rising, voting 5-2 — with Hooser and Tim Bynum in opposition — to reject the group's petition to get a far-reaching GMO regulatory measure on the ballot. Kauai Rising claims it's a charter amendment, which requires signatures from just 5 percent of the registered voters. But the county attorney's office said it was more akin to an initiative, which requires signatures from 20 percent of the voters.

Initially, Councilwoman JoAnn Yukimura voted with Hooser and Bynum today on a motion to receive the petition. But when that motion failed, and a second motion was made to reject the petition, she went along with the majority. The second motion also asks the county attorney to explore filing for a declaratory judgment on whether the measure is an initiative or an amendment.