Judge Strikes Down Kauai GMO/Pesticide Law

A federal judge has struck down Ordinance 960 — Kauai's pesticide/GMO regulatory bill — finding that it is pre-empted by state law, and therefore invalid.

In issuing his Aug. 23 judgment, released this morning, Judge Barry M. Kurren enjoined Kauai County for implementing or enforcing the law, which was due to take effect Aug. 16, but extended to Oct. 1. However, he did not rule on all the issues. 

In his order, he states:

Because the Court finds that Ordinance 960 is without effect due to state preemption, the Court refrains from addressing Plaintiffs’ due process and equal protection claims. Similarly, in light of the conclusion that state law preempts Ordinance 960, the Court declines to address the summary judgment motions as to all of the remaining claims.

The decision vindicates Mayor Bernard Carvalho Jr., who vetoed the bill on advice from the County Attorney's office that it wouldn't withstand a legal challenge. The Council initially failed to override his veto, then installed Mason Chock to fill a vacancy on the panel and cast the deciding vote to override. The judge did not rule on the validity of Chock's appointment.

The decision also sounds the death knell for a Big Island ordinance banning new GMO cultivation and a Maui ballot initiative calling for a moratorium on GMO cultivation because it makes it clear that only the state can regulate the GMOs and pesticides.

The judge wrote:

This decision in no way diminishes the health and environmental concerns of the people of Kauai. 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.

In deciding a motion for summary judgment, the court’s function is not to try issues of fact, but rather, it is only to determine whether there are issues to be tried.

Judge Kurren agreed with Margery Bronster and Paul Alston — attorneys for the seed/chemical companies — who argued the counties have no inherent power, but only the authority granted to them by the state, and that Hawaii statutes already designate the state Department of Agriculture as the entity charged with regulating pesticides.

The judge wrote:

Ordinance 960 regulates pesticides in two ways. First, it imposes various pre- and post-application reporting requirements. Second, it establishes an array of pesticide buffer zones in which no crops to which pesticides would be applied may be planted. Accordingly, the “subject matters” regulated by Ordinance 960 are record keeping and reporting, and areas of permissible planting and associated pesticide use.

Though not utilizing the specific phrase “buffer zones,” the state regulatory framework expressly addresses the DOA’s role in determining unreasonable adverse effects of pesticide use including the use “in or adjacent to certain areas.” Additionally, state law expressly sets out reporting requirements surrounding the use of RUPs. Accordingly, the Court finds that the statutory scheme and associated administrative rules cover the same subject matter as Ordinance 960.

He found that the Board of Agriculture and Department of Agriculture clearly have authority to regulate the distribution and use of certain pesticides, and are empowered to conduct inspections:

That counties and local governments are wholly absent from this framework of rulemaking, oversight, and enforcement evidences the legislature’s intent that the State have exclusive authority over pesticide regulation.

Accordingly, the Court holds that the pesticide provisions of Ordinance 960 are preempted by state law and are barred from taking effect.

Under similar reasoning, he also found:

Accordingly, the Court holds that the GMO notification provision of Ordinance 960 is preempted by state law and is barred from taking effect.

However, he also noted that counties do have some say in agricultural matters:

The fact that the state Constitution declares agriculture to be of statewide concern, does not by itself preclude all county regulation in the entire field of agriculture, or trigger a requirement that the State must expressly grant the counties specific authority in the area of agriculture. Indeed, art. IX § 1 states “the state shall provide for the protection and promotion of public health,” and art. IX § 5 provides that housing is of “statewide concern.” Neither constitutional provision indicates that the counties have any role to play, but this does not preclude the counties from enacting ordinances affecting either area where an ordinance falls under the counties’ generally granted powers.

[T]he legislature has expressly recognized that the counties have some role to play in

enacting regulations that affect the field of agriculture. This conclusion that the

County has some authority in the area of agriculture is, however, only the first step

in the required analysis of County police power under HRS § 46-1.5(13).

In addition to empowering county governments, “HRS § 46–1.5(13) was intended to be a provision mandating the preemption of any ordinance that either conflicted with the intent of a state statute or legislated in an area already staked out by the legislature for exclusive and statewide statutory treatment.”

He further found that Ordinance 960 does not conflict with the Right to Farm Act or jeopardize privacy provisions of the state public records law, and that disclosing the location of pesticide applications was not pre-empted by FIFRA, the federal pesticide laws. Nor does federal law preempt the annual GMO notification provision of Ordinance 960.

The county issued a statement saying the meeting on rule-making for Ordinance 960 scheduled for tomorrow has been cancelled. The EPHIS — environmental and public health impact study — will not go forward, either, since it struck down along with 960.

The judge also denied the defendant's motion for dismissal on the grounds that the U.S. District Court lacked jurisdiction.

The county was joined in defending the law by Earthjustice and Center for Food Safety. Earlier, Earthjustice attorney Paul Achitoff had expressed confidence, saying he considered the U.S. District Court "friendly." 

 But today the Star-Advertiser quoted Achitoff as saying he was "disappointed" by the ruling:

"It has unfortunate consequences on Kauai and throughout the state. The state has shown complete disregard for problems that the pesticides on Kauai has been causing. The federal court decided that the state only has to the power to do anything about it but the state has refused to do anything."

However, that's not true. The state negotiated with the chem/seed companies for voluntary pesticide use disclosure and conducted some statewide water samplings that found low levels of pesticides. More is needed, but now that the state has been totally reviled, alienated and dissed, and the election is nearly upon us, where's the impetus? 

As I and others have said throughout the months of turmoil, angst and bitter conflict that accompanied this bill's passage and adjudication, if folks would've started by pressuring their state Legislators to act, things might have turned out differently.

Instead, Councilman Gary Hooser convinced them to put their faith in him, and his big gamble. While he won national notoriety and local political acclaim, he lost the battle, leaving his supporters with nothing, and little recourse for future actions.