Musings: Smokescreen

Councilman Gary Hooser has once again inserted himself into controversy, this time introducing a bill for Wednesday's Council meeting that would ban pretty much any smoke that another person considers harmful.

In other words, no more imu, no more smoke meat, no more hulihuli chicken, no more pulehu of any kind, no more beekeeping with smokers, no more fireplaces, no more beach or backyard barbecues, no more wood stoves in Kokee, heck no more cigars or cigarettes, maybe even no more crematoriums or Green Energy plant.

In short, no smoke is allowed at all if somebody claims it's harming their health or injuring their property.

Like his other infamous bit of legislation, Bill 2491/Ordinance 960, Hooser's Proposed Bill 2573 is poorly written, difficult and expensive to enforce and of dubious origin and doubtful need. Yet he cites a 1997 EPA report as partial justification:

A growing body of evidence suggests that we cannot ignore the medical consequences of extensive exposure to wood smoke.

Fine. But how many people on Kauai actually are being extensively exposed to wood smoke, and how many have documented medical problems directly attributable to that smoke exposure? It seems that far more people would be harmed or inconvenienced by the ban than would be helped.

Then there's the enforcement problem. The bill reads, emphasis added:

It is declared to be a public nuisance and unlawful for any person, firm, or corporation in the County of Kauai to intentionally, knowingly, or recklessly cause, permit, or allow to escape into the open air, smoke, soot, poisonous gases, dirt, dust or debris of any kind from any smokestack, chimney, flue, or incinerator, or any opening of any building, or from any smoldering or open fires under the person's, firm's, or corporation's charge or control, in such a manner or in such a place as to cause injury to the health of persons or damage to the property.

How, exactly, are the cops and prosecutors supposed to determine if a) injury or damage has actually occurred, and b) if the smoke in question is the cause? What if smoke is coming from numerous sources?

In its coverage of the bill today, The Garden Island tells the story of one couple who “must shut their windows tightly, turn on the two air purifiers in their home, turn all their fans on, and avoid going outside” to avoid smoke produced by a neighbor's wood burning stove, which they contend worsens their asthma.

It's countered by the story of the neighbors, who use the stove to gain relief from the pain of their knee ailments, which are exacerbated by the cold. Why should their medical needs be subjugated to their neighbor's? 

And why should this tiff be escalated into a county-wide ban?

The article quotes an email from Hooser:

If people believe and can prove their health is being harmed by the burning, they would report it to the police and the prosecutor’s office.

Yet his bill includes no language that defines either harm or proof, leaving it far too vague for any meaningful enforcement and opening the door for spurious accusations. Are people going to get arrested, hauled into court and forced to hire attorneys to protect them from what may be false or unproveable claims?

Convictions are not manini, carrying a maximum $1,000 fine and/or 30-day jail term, with each day of continuance considered a new offense. Could anyone think this is a good way for cops and courts to spend their valuable time?

The story includes a second Hooser quote that offers a clue for yet another reason for this bill:

Many other communities around the nation, not just Maui, have similar issues. It is unfortunate we have to deal with these types of situations, but it is essentially a public health issue.”

Curious that he referenced Maui, where some residents — many of them also active in the anti-GMO/pesticide issue — have been trying for a while now to stop HC&S from burning sugar cane, claiming the smoke is a "public health hazard." If Kauai were to pass this bill, Maui activists could use it to push similar nuisance legislation in Maui County and at the state level, just as happened with Hooser's legally flawed pesticide/GMO regulatory bill.

* Update: In regard to Maui, county spokeswoman Beth Tokioka noted in an email:

Although Maui does have a similar law on the books, we are told by our counterparts on Maui that it is not enforced.  We also believe that turning neighborhood disputes into potential criminal cases is not an effective way to resolve issues.  We are aware of only one such complaint on Kaua‘i relating to the use of fireplaces, and believe that in that case and others, an individual’s use of civil remedies would be much more effective and less burdensome for the taxpayers of Kaua‘i.

So why the big ado?

Hooser further tries to justify his bill by claiming the state Department of Health allows counties to regulate smoke from fireplaces and stoves if they want to. But just because counties have that authority doesn't mean they should exercise it.

Regulation should be the last resort, not the first. If people are having real health problems, let's figure out a way to address their individual needs and concerns rather than institute a blanket ban on smoke that impinges on the rights and cultural practices of many more people.

It's highly unlikely that a Council majority will support the bill. Still, ya gotta wonder why Da Hoos wastes his time — and that of the Council and its staff — writing bad legislation that is destined to piss off a lot of people, especially locals. Rather than law school, Hooser might consider enrolling in Writing Good Bills 101 and a cultural sensitivity seminar.

In other county news, I've confirmed that Mike Tresler will not be assuming the position of county finance director.  However, he has left Grove Farm and took a job with Anaergia, a California company that’s trying to get into the biodigestion business here.

Though Mike was widely rumored to be the finance director pick, it's good that Mayor Bernard Carvalho saw the wisdom in seeking someone with less baggage and more polish to schmooze his budget through a prickly Council.