Wednesday, July 23, 2014

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.


drsurf said...

The State of Hawai`i just enacted new rules/laws regarding restaurants. Tighter control over cleanliness, wearing of gloves, food storage areas and the posting of cleanliness standard signs, green, yellow and red.
I don't see the restaurant industry suing the State because they are being singled out/picked on. Municipalities change/add rules all the time and who sues? The chem companies.

Anonymous said...

You might have a point if the county had regulated ALL pesticide users but it didn't.

Anonymous said...

A poorly considered analogy drsurf. Biotech Agriculture has no problem with how the State regulates their Industry and, so far, neither does the Restaurant Industry.
Now if Gary Hooser got Kauai County to legislate that restaurants could only buy his cousin Freddie's use only once gloves for $100 apiece; then you'd have your analogy!
Don't laugh! Reelect Hooser and you'll find out he's just getting started!

Pete Antonson

drsurf said...

Thanks, good point. But that's what people are trying to do with amendment

Anonymous said...

It would be nice if the State actually regulated pesticide use and tested the air, land and water to determine if there is contamination. But with the governor and our legislators having their heads up their okoles, it won't happen.

Anonymous said...

What are you talking about 11:08? They do regulate and test. Maybe not to your satisfaction but they do it. The county isn't going to test.

Anonymous said...

Was the court hearing recorded and can you post a link? Thanks for posting, could not find what had happened

Anonymous said...

Remember the contaminated soil discovered in Kilauea and Kekaha from the plantation days. They were discovered and remediated by the Department of Health. They also conducted the atrazine test and more recently random testing of other waterways, Statewide. The higher traces were found in urban Honolulu.

Anonymous said...

From Wiki, "As of 2003, there were a total of approximately 27,000 jobs on KauaŹ»i, of which the largest sector was accommodation/food services (26%, 6,800 jobs) followed by government (15%) and retail (14.5%), with agriculture and accounting for just 2.9%"

Are the 1.5% or so of Kauai jobs that are in Ag worth allowing poison air?

Preemption is for lawyers. Can't we just stop the poisoning of the air? Can anyone come up with a way to stop DuPont and Syngenta from poisoning the air? Or will they turn their corporate machinery against anyone who would dare try regulate them?

Anonymous said...

Poisoning the air? WTF are you talking about? Go to Beijing and see poison air. What a kook.

Anonymous said...

Thanks for accurately reporting on this as you always do. It's great to stay informed from a reputable source.

Anonymous said...

Did we pay for Bynam and Hooser to leave the Council Meeting and fly to Oahu to sit in on the Courts rulings. I hope they enjoyed watching the County being sued. We need council members that actualy do their homework and make their decisions based on facts.

Anonymous said...

To 10:25: why you gotta use the language you use? Also, haven't you read the reports re: Waimea Canyon School and the pesticides they found in the samples they took, haven't you heard how people's tongues and throats get tingly and sore and how the children and some adults get bloody noses when they spray above Waimea Valley. We are concerned about Kauai, not Beijing---they have their own problems that they should be working on.Poisons are in the air and drift with the wind! Look, we need help here and the State has not helped. Whatever is being done, whether legal or illegal, if it calls attention to the problems with the pesticides used by the biotechs, i'll take it as good news! We will go one step at a time--sometimes forwards, sometimes backwards, but like a toddler, we will get it right over time!!!! Hoping it won't take too long cuz we need help asap! Hey, Kauai Coffee, this isn't about you, your company is very cooperative, and i think it's because you are very local and concerned about human health and welfare!

Anonymous said...

Can you find out Joan? How much did the taxpayers pay for Tim and Gary to fly to Oahu during a scheduled council meeting. Air, car, per diem, etc. Thanks Joan.

Anonymous said...

@12:09 yes totally agree. Hooser and Bynum are the worst members to ever sit on county council. They have done more harm to Kauai than anyone has done in councils history. It will take decades to recover from the financial losses and community division/ hostility they have created. It's really unfortunate. Time to start the healing process and I don't mean Barca.

Mary LNU said...

First of all, I'm in Gary Hooser's camp. In 2008 I was working with him when he received frantic calls from school authorities on Kauai following the poisoning of school kids by pesticide drifting into the school from adjacent ag fields.

My interest in unregulated pesticide use predates my work with Gary, however. Twenty years ago a fellow attorney was teaching at a Kauai high school. Born and raised in California, she mentioned that she'd never encountered such a high incidence of autism.

Fast forward to 2014. Time Magazine reported within the last month that the result of a very large UC Davis study established that pregnant women exposed to pesticides are 60 percent more likely to give birth to an autistic child. SIXTY PERCENT!

The question is whether the EPA's conclusion that individual pesticides are "safe" is reliable. Keep in mind that EPA draws its employees from BigAg and BigPharma (which share interests). Even assuming that individual pesticides are "safe," NO toxicity studies have been conducted on public health following application of a cumulative load.
Obviously the industry has no interest in this testing.

Absent these studies, anecdotal evidence from the community and historical and med test results from medical doctors can't be discounted.

Many of the pesticides applied on Kauai fields--and to Kauai residents--have been prohibited elsewhere, even in developing nations. When will we in Hawaii get angry that we're being treated as a third-world country--a dumping ground? How do you feel about BigAg/Big Pharma reducing Kauai to another SuperFund site?

I've often wondered just how much money it takes for our elected leaders to mortgage the land and water rights of future generations... It's a pity that the cost of buying a local politician is so low. If recent numbers can be believed, about $15,000 at the local level and around $50-60,000 at the state level. AUWE!

Anonymous said...

Dear MARY LNU.. Im sure your well meaning and all but Your horrific story and evidence of poisoning only strengthens the fact that Hooser and Bynum have got to go! If they really cared about all the people who are concerned about pesticides then they would have taken the time to write a legally sound bill! They "fisted" their way through knowing full well that it would fail and cost the people of Kauai big time! They knew it would, in the end, be detrimental to the people of Kauai and they still did it. As far as Im concerned Gary and Bynum are as "Pro-GMO" as they come. They are literally creating a legal situation for these companies that will make them even more protected by the law and untouchable. In the mean time, nobody is getting relief from all the poison you claim. You defend Gary Hooser by saying how bad all these pesticides are. Your argument doesn't make any sense. The fact that pesticides are "bad" does not make Gary or Tim "good". All you red shirt Hooser fans always make the same argument over and over about how horrible pesticides are blah blah blah. This isn't even about that right now. Its about the process to deal with the problem and how Gary and Tim are and have been F@%cking it up and taking advantage of tax payers, genuinely concerned citizens, children with birth defects, etc.. for their own selfish political agendas. Because if they really wanted to do it right, they would have. They knew how and they chose not to. They chose to rush it and demonize the Mayor (so they can blame him when it all eventually fails as they knew it would) and anyone against them. They chose to divide the community by spreading lies and fear mixed with just enough truth to get a cult following. So while your compelled to educate everyone again about how "bad" pesticides are (thank you but I think we all know by now), take some time to educate yourself about who it is your endorsing and how it all really went down. Consider taking Gary Hooser of the pedestal you put him on. GROSS!!!!

Anonymous said...

"Go to Beijing and see poison air. What a kook."

Different poisons. When the air in the mainland US in the '70's,began to look like Beijing's air today, the "environmentalist wackos" got auto and factory emissions regulated and the air got better. The auto industry screamed and predicted national collapse, just as the seed companies do on Kauai.

Beijing did not regulate the air - and they have bad air, and record-setting lung cancer.

When we realized that freon was destroying the Ozone layer, car AC's got regulated. The industry demonized the activists and predicted economic disaster from the regulations. I remember G. Gordon Liddy on the radio, sounding like the pro-GMO company folks here - predicting the end of the auto industry over AC freon regulations. That was 1991.

On Kauai, where the locals doctors are testifying that they see abnormally high incidences of birth defects, and the autism studies mentioned above, and with no other potential causes apparent, and people packing the Council Chambers, why shouldn't a democratic people be allowed to regulate the chemical companies?
Oh yes, some legal crapola.

Anonymous said...

There is no scientific proof linking the incidents at WC School with anything other than rapid "common sense" type conclusions. Children are very open to suggestion and will behave as they are led to believe is expected; including being physically ill.

The Davis autism study was conducted by a board member of an antichemical advocacy group as wellas an autism advocacy group. It was a survey study, no pesticide measuring of any kind was done, sample was way too small (less than 500, should be 2000+), had a highly questionable study model, and had counter intuitive results (those 1.5 miles from fields had fewer cases than those 2.5 miles away); but, it made a good headline if that's all you read!

Legitimate autism research is pointing to a genetic etiology. Chasing vaccines and every evironmental fad that surfaces just wastes the time of those who work in that field. I do, and did so for 14 years on the South and West sides of Kauai.

Pete Antonson

Anonymous said...

That "legal crapola" may well result in the law, passed at 3 in the morning at the insistence of Bynum and Hooser, being tossed out. Which is why Hooser told Joan that he didn't care about enforcement. As long as it passed, he could play the hero to his fisted minions.

Anonymous said...

"Twenty years ago a fellow attorney was teaching at a Kauai high school. Born and raised in California, she mentioned that she'd never encountered such a high incidence of autism."

Nope. Twenty years ago was 1994. The uptick in autism diagnoses internationally had just begun, but not at all on Kauai. Fourteen years ago, the Kauai rate was about 1 in 1100, while the CDC was reporting a national rate of 1 in 166 children. The rate was even higher in California. Perhaps your friend lost touch with her home state?

Some of us suspected that the low rate on Kauai was due to lack of ASD aware doctors. We worked to get kids off island for experts and even to fly some over. The rate did rise, but still well below the national average.

The records are available through the DOE as children with disabilities are reported under Federal laws (Voc Rehab and IDEA). There was no epidemic of autism on Kauai 20 ago. And although the rates today are higher than before, they are higher internationally.

DOE was under Federal review due to the Felix Consent Decree for 10 years, so there is substantial documentation. Real evidence, not anecdotal.

I know a couple of doctors are now talking about the possibility of higher birth defects and cancer, but where is the evidence? Certainly, it doesn't exist for cancer as shown by the state's data.

I also know doctors, therapists and hospital personnel on the Westside are majorly po'd about the claims of possible high birth defects and cancer by a couple of doctors, but they can't respond because of HIPAA privacy restrictions. However, DOE reports the number of children with disabilities by category and school, including birth to 3 years old, and that data doesn't support the wishy washy claims of possible Westside problems by two medical people.

So, yeah, anecdotal "evidence" can be discounted.

Anonymous said...

it'll go to the 9th circuit soon regardless of outcome level judges with purge the corrupt disclosures by our mayor with the "unconstitutional" county opinion he let out...its all a big party of deception. Dig into the hierarchy of Syngenta and others and realize they are world wide deceivers. their board of directors are all worth multi millions, never stepped foot on a farm, have zero clue where their sewage is poured into other countries rivers. Plenty to be optimistic for regardless of the hybirid posturing.

Anonymous said...

Mary LNU and 5:46 --More BS- Did the Kauai Doctors send any letters with their concerns to the DOH, EPA or CDC? In Honolulu, one Doctor (cover Honolulu Magazine) sends one letter to DOH about a weight loss natural organic pill. And Bammo, the DOH and Feds shut this company down in two shakes. This was an unregulated company, but somehow this single solitary Doc had FACTS to back up her claim. One Doc and FACTS.
It is an old tactic to bring up cancer and birth hits hard, BUT-
Da Hoos and Jackpot and their furious li'l fistees have NO facts. The Kauai Docs have No Facts, lots of emotion, a large portion of rich, retirees who do not want ANY economic activity on Kauai (except some restaurants and yard/pool services) so they can enjoy their new found EDEN.
After Hoos, Chock and Bynum get dumped, the new Council members can go to Big Ag and talk. Big Ag will work to stop dust etc. But they will not do Jack Pack as long as they are targeted by a few Council people who are on a personal vendetta to get National attention for themselves.
Da Hoos and Bynum do not care about the Locals. Somehow Mason Chock has become an accomplice. C'mon Mason, man up, stand on your own.

Anonymous said...

Wow 9:02 you make a lot of sense. You've done your research and thanks for sharing.

Anonymous said...

This is not so much about laws as common is about the destruction of the soil for future use in more sustainable ways to feed the island ...saturated with Round up and other toxic chemicals, poisoning the water, air, and neighborhoods on a small island.

It brings to mind that if we are concerned about the health of people and the island we should also demand responsibility from the State and County as well as the Golf Courses, and citizens who Over Use pesticides and do not look for healthier alternatives for weed control. (make more Money for the pesticide companies)

Just because a farm is non GMO does not mean it will be pesticide free. Kauai coffee and others use "heavy pesticides". If it takes pesticides to grow crops, why not find something else or get some education on how to do it?

How much can an Island take? What is the saturation point? Will we need to drill into the Mountains to find non contaminated water because our wells and streams are polluted?

All the squabbling with lawyers and egos is just BS. Those with ALL the money Always win in court.

Lets get some new conscious and knowledgeable people in office!

This county stinks with ignorance, egoism, racism,greed, nepotism, and negligence.

Nothing gets done, lots to do about something but nothing is being done that helps the land and the People.

Big money is here to stay.

Dr Shibai

Anonymous said...

Amen to that 10:04 AM. As long as our state and county officials are beholden & afraid to tackle big money and their lawyers, our island and her people suffer big time!

Time for CHANGE, let's get younger folks and new blood in government and all those boards & commissions.
So much power in the same hands all these years!

Anonymous said...

Where do you think the county is going to get the $ to fight big $? Is young Barca prepared to raise property taxes or cut services to get $ for legal battles? Oh wait, isn't he getting campaign contributions from big $ himself ?

Anonymous said...

Dr Shibai what new knowledegable conscious people are even running ? You may think the lawyers squabbling is BS but that's the reality of the system and the situation. If a good law had been passed it wouldn't be in court.

Anonymous said...

"If a good law had been passed it wouldn't be in court."

That is naive. Many controversial laws are challenged in Courts. Some are struck down, some are upheld, some are upheld in part and struck down in part.

The third one may be what happens on 2491.

Anonymous said...

The so-called Dr. Shibai said, “If it takes pesticides to grow crops, why not find something else or get some education on how to do it?”

This is so typical of a statement from a pseudo-intellectual who of course knows squat about agriculture yet thinks he is so smart and ag people are ignorant so he feels obligated to share some of his great wisdom with them. God will the earth keep creating these nincompoops?

I’m surprised with his ego Shibai isn’t running for office himself. But then maybe he’s worried that he'll expose himself for being what he actually is: all mouth and zero thoughtful, original ideas. "Just sayin'"

Anonymous said...

Dr. Shibai has a PhD, summa cum laude in Shibai.

Anonymous said...

Joan- Even if the court slam dunks the Ag companies and upholds every part of the law, appeals and other legal battles will continue. The law, if put into effect will do nothing to stop dust and drift.
The companies would work toward mitigating drift if they weren't in the cross hairs of a segment of the population and Hooser fistees. Right now, they are in a no win predicament.
The major problem, in many people's opinion, is the division of the island. Locals vs. Haoles, so to speak. How do we bring a little harmony to the situation? Right now, most people do not even want to talk about GMOs or herbicides, because they are afraid they will be burnt at the stake. I hold Hooser and Bynum responsible for flaming the emotions. Perhaps if these two were no longer on the Council, cooler heads could prevail and meaningful communication would ensue.
Of course, Jay or the next Council Chair would have to actually lead and keep all testimony from Council members and public on point. Even the Council members themselves could be calling "point of order" any time any one spoke off topic....but Joan, you are sensitive and have insight into this cultural divide, what are your thoughts on how to bring Kauai back together? If you would share your thoughts, it could be a good thing, your blog is read by many and your opinion is valued.

Anonymous said...

3:01 Farmers reliance on pesticides as their main control strategy is not only unsustainable, but also extracts penalties in terms of human and environmental health. These penalties are sometimes borne by pesticide users themselves, but in many cases, it is other sectors of society who may be adversely affected. These ‘externalities’ result in economic costs which are not reflected in the price of pesticides and there is therefore no direct market incentive for users to change their pest control practice to reduce these costs.

Anonymous said...

Councilman Hooser has been working on the problems big ag. creates on Kauai for a long time! He has met with people in Waimea, Kekaha ever since the Waimea Canyon School incident. He has heard the concerns from the local westsiders. In fact, he has been the only one i can think of who has done so---on his own time and with good intentions. So, if people think he has polarized the community, his work has created awareness and brought to light how dangerous/harmful the chem industry can be. Those who don't believe what he has brought to light will bash, minimize his intentions and mock him---so doing they polarize the community! So those who blame Hooser and Bynum for "flaming the emotions", should look at their intentions---if they disagree, than be willing to disagree, but do it without blame. Tell us your truths and try to educate us on your positions--we may buy in to what you have to put on the table!

Anonymous said...

9:27 PM
So you say, but your premise is that even the controlled use of pesticides is inherently bad for people and the environment. I do not accept that premise.

Anonymous said...

3:01 Why Joan does not block your name calling comments is incomprehensible. You must have something better to say or do. Gee, how did farmers ever manage before the chemical company started selling them their poisons. Lucky for us our ancestors did not starve. DDT was hailed as a miracle until vectoring insects developed resistance and non target creatures like fish and birds started to be wiped out. Bald eagles and brown pelicans were nearly eliminated. No testing needed, us spray away all your problems, until oops.

Luke Kambic said...

"Gee, how did farmers ever manage before the chemical company started selling them their poisons."

Here's how they managed: in 1910, agricultural workers made up 31 % of the US workforce. Before effective herbicides existed, countless people spent their days pulling weeds by hand. On modern organic farms in the US, poor migrant laborers do most of this work, helped by gas-guzzling, soil-damaging mechanized tilling. And before insecticides and fungicides, some farmers *didn't* manage.

Not to claim that pesticides are the only reason things changed- mechanization was probably the biggest factor. And the way that insecticides were used early on was definitely flawed. But with all the talk about the real or imagined human cost of pesticides, most of which are now carefully engineered for low off-target toxicity, there needs to be some recognition that their absence would also have a human cost.

It's absolutely mind boggling to hear hippie "permaculturalists" here pushing for a return to the era of stoop labor, while they collect EBT because it was too much trouble to keep up with the wainaku grass in their bean patch.

Anonymous said...

"The companies would work toward mitigating drift if they weren't in the cross hairs of a segment of the population and Hooser fistees. "

And THERE you have it. Seed Co. people telling you that they would fix the problem if Kauai local government was not telling them to fix the problem. Fundamentally, the Seed Co. view is anti-democratic. "Oh yeah Kauai and Big Island - you think you can tell US what to do?"

I think many will be surprised at how many votes the otherwise unqualified Barca gets from single-issue voters.

Anonymous said...

The fistee mob action is what's undemocratic. If people are foolish enough to vote for Barca on a single issue for which he was merely used as a pawn that will be a true blow to democracy. But that isn't going to happen. Barca is going to fail spectacularly, just like 960.

Anonymous said...

We need a charter amendment that requires mayoral candidates to graduate from high school.

Anonymous said...

Gee Luke, I guess you know oil is not renewable and has peaked. The low hanging fruit has been picked. The world will soon be going back to the necessary of using human labor to provide our food. Industrial agriculture will be just a flash in the pan in terms of the history of this earth. We will be going back to full employment along with a rapid population reduction more in line with the preindustrial agricultural methods. We have just been eating the oil and poisoning the environment so we don't have to work so hard and some people can get rich.

Anonymous said...

@ 1:29 pm,
Is that you Juan? Islandbreath is the only place Peak Oil Doom by Nat Hentoff is kept on life support after 10 years of waiting and actually finding out we have more oil than we ever dreamed of having!

Pete Antonson

Anonymous said...

Human beings are a flash in the pan in terms of the history of the earth. Enjoy yourself, it's later than you think.