Battle is far from over, say residents and attorneys
United States Magistrate Judge Barry Kurren ruled that Kauai County Ordinance 960, which required agricultural operations to disclose the type of pesticides they spray on their fields, and established buffer zones near sensitive areas, is preempted by state law and therefore is unenforceable.
EXCERPT (item 1): Earthjustice attorney Paul Achitoff said, “This battle to protect Kaua‘i’s residents from the effects of toxic pesticides is only just beginning. We do not accept that people must put up with toxic chemicals being sprayed near their homes and schools, and will keep fighting for their right to protect themselves.”
1. Federal court rules that state law preempts Kaua‘i's pesticide and GE crop disclosure law – Center for Food Safety
2. Judge overturns Kaua'i pesticide reform law – Pesticide Action Network North America
3. Kauaʻi residents and community leaders respond to federal court ruling in lawsuit by chemical companies: “This battle is far from over”
1. Federal court rules that state law preempts Kaua‘i's pesticide and GE crop disclosure law
Center for Food Safety, August 25, 2014
United States Magistrate Judge Barry Kurren today ruled that Kaua‘i County Ordinance 960 is preempted by state law and therefore is unenforceable.
The law received widespread support on the Island, and was designed to protect local residents and Kaua‘i’s environment from the year-round spraying of large quantities of restricted use pesticides by multinational chemical companies after state agencies failed to provide any meaningful assistance. It required large agricultural operations to disclose the type of pesticides they spray on their fields, and established buffer zones near sensitive areas, including schools, medical facilities, dwellings, parks, public roadways, shorelines, and waterways.
The lawsuit against Kaua‘i County was brought by DuPont’s Pioneer Hi-Bred International, Inc., Syngenta Seeds, Agrigenetics, Inc (owned by Dow Chemical), and BASF Plant Sciences LP in the U.S. District Court in Hawai‘i. They argued, among other things, that that the county had no authority to regulate pesticides and genetically engineered seeds because state and federal laws did so already. Four nonprofit organizations – Ka Makani Ho‘opono, Center for Food Safety, Pesticide Action Network North America and Surfrider Foundation – represented by Earthjustice and Center for Food Safety, were permitted to intervene as of right in the lawsuit against Kaua‘i County, and since have helped to defend the ordinance in legal filings.
Magistrate Judge Kurren concluded that, although the Hawai‘i Pesticide Law does not contain any provisions that actually conflict with the Kaua‘i ordinance’s requirements, the state law’s broad scope implied that the Hawai‘i legislature intended that only the state government had the authority to regulate pesticide matters. The court also ruled that federal laws do not preempt the ordinance, leaving open the possibility that the State could amend its laws to protect its residents without running afoul of federal law.
Public hearings on County Ordinance 960, originally Bill 2491, drew as many as 1,000 residents, with 227 testimonies in favor of the bill. Thousands of residents took to the streets to march in support of the measure. The City Council passed the bill 6-1 on Oct. 16, but Mayor Bernard Carvalho, Jr., then vetoed it. The City Council voted to override the veto.
The defendant-interveners are currently analyzing all legal options, including appeal.
Earthjustice attorney Paul Achitoff said, “This battle to protect Kaua‘i’s residents from the effects of toxic pesticides is only just beginning. We do not accept that people must put up with toxic chemicals being sprayed near their homes and schools, and will keep fighting for their right to protect themselves.”
”Center for Food Safety stands with the people of Kauai and we are extremely disappointed in this ruling. This is certainly not the end of this fight; we will continue to do everything we can,” said George Kimbrell, senior attorney for Center for Food Safety.
2. Judge overturns Kaua'i pesticide reform law
PANNA, August 25, 2014
http://www.panna.org/judge-overturns-kauai-pesticide-reform-law
Earlier today, a federal judge issued a ruling overturning a popular pesticide reform law passed by the Kauai County Council last year. Four global pesticide and genetically engineered seed corporations – DuPont, Syngenta, Dow, and DuPont Pioneer – all challenged the passage of the new law.
PAN and its members in Hawai’i, including parents, farmers, and teachers, is represented by attorneys at Earthjustice and intervened in the case to defend the County’s law. Other community, food, and farming groups are also involved in the suit, including a group of residents who have been directly affected by pesticide drift called Ka Makani Hoopono (“The Wind That Makes Right”).
The law, Ordinance 960, created modest no-spray protection zones and a County-held database for reporting pesticide use and plantings of genetically engineered crops.
Paul Towers, spokesperson for Pesticide Action Network released the following statement:
"We're still reviewing the contents of the court order. Unfortunately, the judge's ruling appears to ignore the rights of counties in favor of global pesticide and genetically engineered seed corporations. By denying Kauai's law, the judge is undermining efforts to create more transparency and stronger protections for farmers, workers and families from hazardous pesticides. The ruling is also a direct challenge to the county’s right to take action to protect the health of families and children in the community. PAN will work with our lawyers to explore all available options to defend the County of Kauai, and all opportunities to support a fair and green food system in Hawaii."
3. Kauaʻi residents and community leaders respond to federal court ruling in lawsuit by chemical companies: “This battle is far from over”
Hawai'i Alliance for Progressive Action, 25 August 2014
Kaua‘i residents are outraged by a magistrate judge’s ruling today in the lawsuit brought by four chemical companies against the County of Kauaʻi to block implementation of Ordinance 960 (previously Bill 2491). The magistrate judge, Barry M. Kurren ruled that Ordinance 960 is pre-empted by the state. An appeal of the ruling is likely.
Residents see the ruling as a symptom of a broken system: “It’s discouraging to witness the injustices and inadequacies of the American legal system, which in this case has valued and protected corporate profit and trade secrets over people’s simple, basic human right to know what toxic chemicals they are being exposed to in excessive amounts almost daily,” said West Kaua‘i resident Malia Chun.
Recent revelations that pesticide use by the chemical companies is some of the highest in the nation, and has transformed parts of Kauai into “one of the most toxic chemical environments in all of American agriculture,” (see article) further reinforced the critical need for disclosure laws and buffer zones. The failures of the State to protect health and environment were made abundantly clear in deliberations over Kauai’s Bill 2491 (partly summarized in this article), and residents are infuriated by the blatancy of injustice. Since the passage of Ordinance 960 last November, several groundbreaking studies by respected scientists and health institutions have revealed the links between disease and pesticides applied on Kaua'i.
“The chemical companies must be held accountable to our people and our land,” said Andrea Brower. “Movements for social justice, the environment and democracy are never straightforward and never easy, especially when they confront such powerful interests. But people on Kauai are determined in their love for the ‘aina [environment] and one another, and committed to what is pono [righteous/harmonious]. That cannot be exterminated by a lawsuit. As the absurdity of injustice and the need for deep systemic change is revealed, movements only build in strength.”
Earthjustice, the public interest legal nonprofit in Honolulu, along with the Center for Food Safety, are representing a group of Kauaʻi individuals and nonprofits that have a stake in protecting Ordinance 960 from legal attack. Earthjustice attorney Paul Achitoff said, “This battle to protect Kaua‘i and its residents from the effects of toxic pesticides is only just the beginning. We do not accept that people must put up with toxic chemicals being sprayed near their homes and schools, and will keep fighting for their right to protect themselves.”
Other community leaders agreed. “This issue is not going away. Wherever the battle is, The People will be there,” said Gary Hooser, President of H.A.P.A and a Kaua‘i Councilmemer. “If it’s at the state legislature, we will be there. If it’s in a court of appeal, we will be there. The people of Hawai‘i have learned too much to go backwards. We’ve learned about the high levels of pesticides these companies are using. We’ve seen the lengths they are willing to go to for the ability to spray pesticides near our homes and schools. We know that truth and fairness are on our side. We will not go away until we win and until our families and natural resources are protected.”
The lawsuit has cost the County only a small fraction of what is spent in defense from personal suits, and is considered by many to be a highest priority. Isobel Storch, a farmer on Kaua‘i and former municipal attorney said, “The health and safety of Kauai’s people should be our primary concern. If the County isn't willing to respond to industry lawsuits then we will have only laws that are acceptable to the chemical industry. That is clearly unacceptable.”
The judge Kurren also ruled that Ordinance 960 is NOT pre-empted by federal law.
Ordinance 960 creates buffer zones around sensitive areas such as homes, schools, hospitals and streams, and requires disclosure of pesticide spraying.