Seed Companies Sue to Invalidate Bill 2491

Pioneer, Syngenta and Agrigenetics (DOW) are asking a federal judge to invalidate Kauai County's pesticide-GMO disclosure law and prevent its implementation.

The complaint, filed in federal District Court late Friday afternoon, says “Bill 2491 irrationally prohibits Plaintiffs from growing any crops, whether genetically modified or not, within arbitrarily drawn buffer zones inapplicable to other growers, and restricts Plaintiffs' pesticide use within those buffer zones.”

As I previously reported, Councilwoman JoAnn Yukimura introduced the amendment prohibiting any crops in the buffer zones as bill proponents wept, yelled and demanded immediate passage in the wee hours of Oct. 16. Bill co-sponsors Gary Hooser and Tim Bynum supported her amendment.

The complaint contends the county has no authority to adopt such a bill because it is preempted by the state and federal governments, which already regulate pesticides and genetically modified crops.

According to the complaint, the bill is “fatally flawed” because:

It violates Plaintiffs' federal and state constitutional rights to equal protection and due process by arbitrarily targeting Plaintiffs— and exempting virtually all other uses of pesticides, including the County itself;

It also violates Plaintiffs' federal and state constitutional rights to equal protection and due process by imposing burdensome operational restrictions and civil and criminal penalties that have no legal or factual justification;

It takes and damages Plaintiffs' property by forbidding them from planting any crops in arbitrary “buffer ones” without good cause or just compensation;

It violates the Kauai County Charter; and,

It was adopted — over a veto by Kauai Mayor Bernard Carvalho at the advice of his legal counsel — by a supermajority of the County Council that included a member who was selected in a manner that violated the Hawaii Open Meeting Law (H.R.S. Chapter 92).

As you may recall, when it appeared the Council was unable to override the mayor's veto, it recessed for a day and met in secret to pick Mason Chock to fill a vacancy on the Council. None of the other candidates were publicly identified. The following day, the Council again took up the bill, and with Chock's vote, overrode the veto.

The plaintiffs are asking the U.S. District Court to “declare Bill 2491 invalid and enjoin the County from enforcing it.” The bill is due to take effect. Aug. 16. Though Kauai Coffee and BASF are also affected by the bill, they did not join the complaint.

“Bill 2491 is designed to discriminate against GM seed farming operations on Kauai,” the complaint states. “Because Kauai Coffee does not grow GM crops, Bill 2491 was tailored to reduce its impact on Kauai Coffee, just as it was explicitly tailored to avoid impacting others who use pesticides on Kauai to grow non-GM crops and for other purposes.”

The bill also “violates the Commerce Clause because it has a disproportionate impact on out-of-state entities that are engaged in interstate and foreign commerce, without burdening local entities will Bill 2491's requirements," the complaint alleges. "In fact, the County targeted Plaintiffs in drafting the Bill. This is reflected by testimony of the Bill's sponsors and opponents.” As evidence, it cites examples of testimony from Hooser and Bynum.

The complaint states the companies “seed production activities could not have proceeded without the exhaustive review of potential health, safety and environmental risks by federal and state agencies, which have conclusively determined that (1) GM plants present no such risks, and (2) the pesticides Plaintiffs use present no unreasonable risks to the environment or public health. Thus, the ostensible purpose of Bill 2491, to protect the 'health and natural environment' of Kauai and its people from the use of pesticides and GM crops, is already addressed by the comprehensive state and federal regulatory programs.”

It goes on to say the bill “imposes unwarranted and burdensome disclosure requirements relating to pesticide usage and GM crops that compromise Plaintiffs confidential commercial information and unnecessarily expose Plaintiffs to risks of corporate espionage, vandalism, and environmental terrorism.”

The complaint states the companies “have received threats of vandalism related to their opposition to Bill 2491.”

“Information regarding use of specific pesticides in experimental GM seed production is closely-guarded confidential commercial information because a knowledgeable competitor can often determine from pesticide use patterns the nature of the new GM traits under development,” the complaint states in explaining the corporate espionage concern.

The complaint maintains “the restrictions imposed by Bill 2491 are not rational.” As an example, it cites the county's “finding” that GM plants could potentially disperse into the environment through pollen drift, seed commingling and inadvertent transfer of seeds. “In fact, none of the Plaintiffs' crops creates any of these risks,” the complaint states.

Further, the bill “does not apply to all those who use pesticides in close proximity to people, although it applies to all of Plaintiffs' farming operations, including those which are nowhere near where people live, work or commute.”

Bill 2491 also violates the state's Right to Farm bill, which prohibits the county from limiting farming activities by declaring them a nuisance, the complaint alleges, and the county has no authority to regulate GMOs.

According to the complaint, none of the three companies are farming within 500 feet of schools, hospitals or assisted living facilities. They also maintain they use pesticides in a manner “consistent with generally accepted agricultural and management practices,” following label directions needed to control drift and protect aquatic resources and workers, and that these pesticides and their use are approved by the federal Environmental Protection Agency.

It also states that “Bill 2491 will cause damage to Plaintiffs' goodwill and reputation” and is “an unconstitutional exercise of police powers by the County since there is no reasonable relationship between Bill 2491's stated purposes and the means to accomplish those purposes.”

Hooser has repeatedly downplayed the threat of a lawsuit, saying it wouldn't play well for the companies to “sue for the right to spray pesticides around school.” He apparently failed to consider they might instead argue for their Constitutional rights to grow crops on ag land. Yukimura previously said she thinks “the court will strike it down.” If that happens, she said, “so be it.”

The plaintiffs are seeking attorneys fees and costs. Six attorneys are representing the plaintiffs, some of whom reportedly bill at about $600 per hour.

The complaint mirrors the concerns some of us have repeatedly raised about the bill, which began with serious weaknesses and was furthered impaired when “red shirt” activists pushed it through without proper scrutiny of the many amendments.

As I've stated previously, if the companies prevail, which is likely, we will be left with nothing but a huge legal bill and legal affirmation that the companies can continue as they have been.

And all because Hooser championed a badly flawed bill for his own political gain.