News Column

Pesticide ruling resets debate

August 29, 2014



A federal judge's ruling against a Kauai County ordinance regulating pesticides and genetically modified crops should bring some legal clarity to the contentious debate over who gets to control GMOs in Hawaii.

In his Aug. 23 decision, U.S. Magistrate Judge Barry Kurren correctly placed that authority squarely with the state.

Kurren held that state laws regulating disclosure requirements for pesticide use and GMO crops pre-empt Ordinance 960, the Kauai law approved by the County Council over the veto of Mayor Bernard Carvalho.

The ordinance mandated that large agribusinesses on Kauai -- including plaintiffs Syngenta Seeds, Syngenta Hawaii, Pioneer Hi-Bred International, Agrigenetics and BASF Plant Science -- provide detailed disclosures of their use of restricted-use pesticides (RUPs), as well as establish large buffer zones around lands located near sensitive areas such as schools, medical facilities and waterways.

The agribusinesses also were required to provide annual reports on the nature and location of their GMO crops.

The ordinance was ill-advised from the start. Its requirements went well beyond state law, creating regulatory confusion and making it an obvious target for a lawsuit.

Furthermore, the county lacked the staffing and expertise to enforce the ordinance.

The $175,000 spent to defend the county could have been put to more constructive use.

Even so, one of the underlying purposes of the ordinance -- to promote transparency and disclosure of the use of RUPs beyond the state's current voluntary guidelines -- should be explored by the state, in cooperation with the counties and the industry.

Kurren's opinion noted that federal law did not pre-empt the state's ability to impose its own disclosure requirements. In fact, said Paul Achitoff, an Earthjustice attorney who helped defend the county ordinance, there's nothing to prevent the Legislature from enacting Ordinance 960 in its entirety as state law.

That would be going too far. But given some legitimate and passionate concerns raised by local communities across the state, it would be wise for the agribusiness industry to demonstrate its good intentions by reaching across the courtroom to ease the concerns of those worried about RUP use. Retreating to the boardroom to toast their victory would be politically unwise.

Meanwhile, other significant home-rule fights await. In October, Kurren will hear oral arguments in a lawsuit challenging a Hawaii County ordinance that prohibits the open-air use and testing of GMO crops not already being cultivated. And Maui voters will consider a ballot initiative in the Nov. 4 general election that would prohibit the testing or cultivation of GMO crops until the industry -- i.e. Monsanto -- conducts a public health and environmental study on the safety of its cultivation practices.

Both measures fail the common-sense test. A broad consensus of experts, including from the University of Hawaii, agree that biotechnology not only is safe, but can be essential to protecting important crops. Genetic modification saved the Hawaiian papaya -- notably exempt from the Hawaii County ordinance.

Present and future environmental pressures, such as climate change and the constant threat of destructive pests, require agricultural policies that give our farmers every tool possible to keep growing an abundance of healthy food. Unsubstantiated fears of GMOs, combined with a lack of viable alternatives, do not make for sensible farm policy.

Kurren's opinion in the Kauai case said the Legislature intended that state law "be both uniform and exclusive" on the regulation of pesticides. Such uniformity and exclusivity also should apply to laws regulating agriculture across the islands. County farmers don't just feed themselves; they feed the entire state, and we all have a vital stake in their success.

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Source: Honolulu Star-Advertiser (HI)


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