The Often Not Very Pretty Process Of Lawmaking

Posted on December 23, 2013 by garyhooser

The passage of Bill 2491 into law requiring the largest chemical companies in the world to disclose their pesticide use and prohibiting the use of these chemicals near Kauai schools, hospitals and homes or face criminal penalties – is a major accomplishment for our community.

Over the past few weeks, many have graciously offered me their mahalo and acknowledgement for this significant achievement.

To be clear, the credit is entirely due to our wonderful community who made this issue and the protection of health and environment their number one priority.  Individual citizens across our island made deliberate and independent decisions to engage this issue, to show up and to walk the talk.

Yes I played a key role in this effort as did Councilmember Tim Bynum. But without a focused and sustained community effort this Bill could have easily died on the vine.

Without the early and ongoing support from Council Chair Jay Furfaro, Bill 2491 might never have even seen the light of day, let alone successfully navigate and override the Mayor’s veto.

In the end, after voting twice in support Councilmember Ross Kagawa flipped his vote and came very close to derailing the entire process.  In retrospect, that early if perhaps unintended support provided important additional momentum at key moments in time.

Likewise the support of Councilmember JoAnn Yukimura and then Councilmember Nadine Nakamura was critical.  While their amendments eviscerated and weakened large sections of the Bill their votes in support of the amended version allowed the measure to remain alive with the most important pesticide disclosure provisions stronger than ever.

This is the often not very pretty process of lawmaking.  You start with what you want, you settle for what you can get and then you amend and improve at every future opportunity.

Councilmember Mason Chock coming into the process at the 11th hour commendably voted his conscience in support.  The other top contender for the position, by his own admission, would have done the same.  Council rules do not allow for an “abstention” and so barring calling in sick for the meeting, no member could have avoided that final vote even if they had wished to do so.

But really, it was the community that came together to make this happen.  It was the community who reached out to me over one year ago and asked me to introduce a measure to deal with the pesticide/gmo issue.  It was the moms and dads, the business owners and teachers, the nurses and doctors and people from all parts of our island who sent in testimony, who marched in the rain and who spent long hours in line waiting for the opportunity to testify.

I commend also those in our community who came out and expressed their views in opposition to Bill 2491.  Many were genuinely concerned about the future of their jobs and they also spent countless hours and days engaged in this process, walking the talk through the lens of their own lives and circumstances.

It is clear to me that good people, people of high integrity and strong character can look at the same facts and circumstances and come to different conclusions. There are multiple sides to every issue and this is the nature of our democracy.

Historically in democracies around the world elections and issues are more often than not decided by slim margins not large majorities. That is simply the reality of our system.

2013 was a roller coaster ride and probably the most intense and most challenging year of my life.  And it goes without saying there has been no shortage of interesting and challenging moments during the 15 years I have served Kauai in politics.

Kauai is a resilient community blessed with wonderful people, beauty and aloha. We survived together hurricane Iwa, hurricane Iniki, the Superferry, civil unions, the PLDC, marriage equality and largest economic downturn in history.  At the end of the day, Bill 2491 is merely a blip on the radar screen of our history together, an important blip I believe but a blip nonetheless.   gh

So what is next?

1) The administration via deputy county attorney Mauna Kea Trask has begun the rule-making process designed to add clarity to the implementation process which takes place 8 ½ months from now when the new law takes effect.  If for any reason this official process is not completed on time, the law nonetheless is the law and must be complied with.  Many if not most laws operate for years without official rules with the administrative department in charge simply establishing reasonable procedures that govern implementation.

2) The 2014 State legislative session opens on January 15.  The chemical companies are already meeting with legislators, hosting fundraisers and drafting legislation intended to take away the power of county governments to regulate pesticides and agricultural activity.  In 2013 they attempted to take away the County power to protect the health and life of their residents and we can expect more of the same in 2014.

3) Modest amendments will likely be proposed to further improve and tidy up the provisions contained within Bill 2491.  Because the measure does not take effect for 9 months, there is plenty of time to modify and improve the ordinance in a manner that does not elicit a strong response from either side of the issue and responds to concerns expressed by the administration.

4) The threat of a lawsuit remains however whether these chemical companies have the audacity to sue the County of Kauai for the right to spray pesticides next to schools remains to be seen.

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The Days Of Looking The Other Way…Are Over

Posted on December 14, 2013 by garyhooser

Sunday December 15 at noon in Haleiwa – please be there and march with us.  If you live on Oahu especially, please make the time to join us and send a message loud and clear that the days of business as usual in Hawaii politics are over.

The excesses of the chemical companies, their development of genetically modified organisms and the negative impacts of this industry is the primary focus for many, however this issue is merely the most blatant and in your face example of how the pursuit of profits over people has taken over.

Whether it is GMO, Turtle Bay, minimum wage, or the high rise debacle in Kakaako, the common thread is a government that increasingly puts the interests of money over people.

I believe we have reached a tipping point.  Partly as a result of social media, partly as a result of a more informed and better educated populace, and partly a result of the sheer arrogance and excesses of industry – too many people are now aware of what is going on.

The days of looking the other way and pretending that we didn’t see are over.

Too many people are aware of the injustice that permeates so many parts of the world we live in.  Too many of us are either too old or too young to have the patience to put up with it any more.  We are tired of business as usual and we’ve grown weary of the mockery that has been made of our government.  The peoples’ house and institutions intended to protect the peoples’ interest have devolved into a system where the protection of profits and the rights of corporations takes precedence over the protection and the rights of people.

On Kauai we have learned to speak truth to power, with aloha – and we won.  We as a community challenged the power of the largest chemical companies in the world, and we won. Our request was minimal: Disclose to us what chemicals you are spraying in our community and don’t use them next to schools, hospitals and homes, yet they fought us every step of the way.

In Hawaii County, the same companies were challenged and again the people won.  On Maui the tide also is beginning to turn.

On Oahu the battle in the coming months will no doubt be waged at the state legislature.

Legislators in support of putting the protection of people and the environment first will attempt to implement statewide regulation of pesticides and genetically modified organisms’ while preserving the rights of local communities to pass even more stringent standards – creating a floor of new regulations and not a ceiling.  The chemical companies and their supporters in the legislature will be using all of their might to make sure that does not happen.

During the 2013 legislative session these companies supported SB727, a measure that literally proposed taking away the power of County government to protect health and life.

It is a given that all stops will be removed during the 2014 session and these companies and their friends will spend whatever it takes to buy the laws they need to buy in order to protect their profits.  .

Fortunately across our state people are waking up to their potential and to their responsibility.  The growing statewide network of community support and the willingness of people to actively engage in taking back control of their government has turned into a genuine movement.  2014 will be a test of sorts.

The potential for a tsunami of change is real and at our door step.  Please join us on Sunday and help send a message to all of Hawaii.  Business as usual is over, done, pau.

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Kauai Perseveres Against Agribusiness Bullying

Posted on November 20, 2013 by garyhooser
The Kafkaesque threat by Syngenta attorney Paul Alston to sue the people of Kauai County for the right to spray their toxic chemicals next to schools, hospitals and homes is disturbing at best.  What kind of world do we live in where large chemical companies are allowed to bully and intimidate small communities attempting only to protect the health and environment of their neighborhoods?
Syngenta is the inventor and primary patent holder of the toxic chemical atrazine which is banned in the European Union.  Syngenta’s host country Switzerland prohibits the use of atrazine and yet this company applies it by the ton, year after year on Kauai and around our state.
In 2006 and in 2008 dozens of children and teachers at Waimea Canyon Middle School were sickened and sent to local hospitals.
Syngenta denied that the adjacent fields of experimental corn and the related pesticide spraying was the culprit but eventually, under intense community pressure they stopped spraying those fields and since then there have been no further incidents.
At the time the Hawaii State Teachers Association filed a temporary restraining order against Syngenta to force them to stop spraying next to the school.
Long time residents on the west side of Kauai know that something is wrong.  There have been massive sea urchin die offs in nearby coastal areas.   Atrazine and other chemicals have been found in the drainage ditches leading from the fields into coastal waters.
Obstetricians, pediatricians and other local physicians have expressed concerns about what they believe to be unusually high levels of normally rare birth defects and certain types of cancers.  Parents report their children have higher than normal incidents of nose bleeds and respiratory problems.
In response to increasing community concerns about the health and environmental impacts of the industrial agrochemical practices of Syngenta and other international chemical companies on Kauai, the Kauai County Council recently passed into law Bill 2491 which contains three basic provisions:
1)       Pesticide and genetically modified organisim (GMO) disclosure
2)       Modest buffer zones around schools, hospitals and homes
3)       A county sponsored and paid for comprehensive study of health and environmental impacts
Bill 2491 does not ban pesticides nor does it ban GMO’s, it simply requires disclosure.
The public deserves the right to know what toxic chemicals are being used in their community and what experimental crops are being grown.  Bill 2491 is not asking for trade secrets and requests only  very basic information.
Over 50 Doctors in our small community have signed testimony in support of Bill 2491.  The Hawaii Nurses Association, Local 5 Hotel Workers, the Kauai Board of Realtors and the Hawaii State Teachers Association have all testified in support.
In the largest display of community support for any issue ever on Kauai over 4,000 residents in a community of only 65,000 people marched and gathered at the County building recently.
Residents supporting the Bill slept overnight on the hard and wet cement in front of the County building in order to garner a coveted seat inside the Council chambers, while the chemical companies hired the homeless and down-and-out to hold seats for their executives.
At every step of the way the chemical companies have attempted to block the Bills passage.  Their communications and public relations budget is in the hundreds of thousands of dollars as demonstrated by the number of radio spots, newspaper advertisements and direct mailers.  They hired prominent community leaders, conducted unethical “push polls”, and employ an army of industry bloggers and social media experts that attack the credibility and integrity of their opponents at every step.
It goes without saying that they pour millions into political campaigns and have easy access to political decision makers at all levels.
But in spite of the enormous resources both financial and political being utilized in opposition to Bill 2491, it was passed into law via a 5 – 2 vote on Saturday November 16 over-riding the earlier veto of Mayor Bernard Carvalho.
Without question, the passing of Bill 2491 into law is a testament to grass roots democracy and community perseverance against all obstacles. The chemical companies and their friends in government threw everything they had at stopping the Bill. 
But our community persevered – speaking truth to power with aloha, and won.
Now, the attorney for Syngenta has again threatened to sue the citizens of Kauai, saying a law suit is a certainty. The arrogance of this company has no limit.  Instead of acknowledging and respecting the people and the decision of the elected body of Kauai County, they insist on forcing their corporate agenda that shields from the public eye their use of toxic chemicals and allows the continued spraying of highly toxic pesticides near Kauai schools, hospitals and homes.
Clearly they underestimate the resolve and commitment of our community.
*Above was published in the Honolulu Star Adviser on November 19, 2013
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With Aloha Comes Kuleana – Bill 2491 Will Withstand Legal Challenge

Posted on November 6, 2013 by garyhooser

With aloha comes kuleana. 

Many in our County believe their aloha, their health, their natural environment and their families are being threatened by the toxic pesticides used on our island by the large agrochemical corporations. 

Residents of our community are willing to sleep over night on the cold hard cement in front of the historic county building for their right to protect their island and its people.  Recently, 4,000 Kauai residents including doctors, teachers, hotel workers, nurses, business owners, students, farmers and families marched with aloha to show their love of the aina and to protect that which they love.

Numerous medical professionals who work in our hospitals, who deliver our babies and who treat our kupuna are telling us that they have serious concerns with regards to the relationship between heavy pesticide use adjacent to their communities and the health of their patients.

Many of these community members have told me this issue is not going away, and neither are they, until our local government puts some protections in place.  Many have told me that the public process of vetting 2491 has uncovered the appalling lack of will at the state level to protect citizens and the environment from the dangers of pesticides.  They tell me they are counting on the County Council.

Our Mayor recently vetoed Bill 2491 saying he supports the intent but is concerned with the potential legal challenges.  Apparently, he believes the perceived legal concerns exceed in importance the health concerns and that the companies will somehow soon be convinced to voluntarily provide the disclosure and buffer zone requirements contained within Bill 2491.

The largest of these companies have already threatened our community with court action and now the Mayor, apparently upon the advice of the County Attorney has turned over to them all of the County’s legal research and rationale.  Any second year law student can tell you that recommending your client turn over their entire legal reasoning and strategy to the opposing lawyer who has already promised to take you to court – could in fact cost you your license to practice law.

All members of the Council are and have been aware of the legal issues but yet we voted 6 to 1 in support of passing Bill 2491.   I voted yes because I believe, based on the testimony from credible physicians, nurses, teachers and scientists that harm is now occurring and it is our kuleana, our duty and our responsibility to take action to prevent that harm.

The Mayor’s new managing director former Councilmember Nadine Nakamura helped craft the final amendments to Bill 2491 and voted in support of passing the Bill.  The Mayor is basing his veto decision in part on legal concerns of those very same amendments Ms Nakamura shepherded through the process.  The County Attorney who is advising the Mayor as to the legal issues was present in the room during the discussion of those amendments and while the vote was being taken.

Numerous highly qualified legal authorities have publicly attested to the legal strength of the Bill and several have stepped forward to defend the Bill and the County at no cost, including the preeminent legal authorities in the nation specializing in the issues of pesticides and genetically modified organisms. 

Local attorney and former head of the Kauai Bar Association Teresa Tico and nationally known attorney and head of the Center for Human Rights and Constitutional Law Peter Schey have both agreed in writing to defend the County of Kauai pro bono should Bill 2491 be challenged in court.

In addition, Paul Achitoff of Earth Justice and George Kimbrell of The Center for Food Safety have also offered in writing their pro bono representation of community groups who would join as interveners in defending the County position.

Finally as even further legal protection: The Bill as written does not take effect for 9 months (as suggested by the Mayor’s new managing director). This provides 9 months to deal with any legal issues without any significant costs incurring. Meaning, once the veto is overridden, if the agrochemical companies sue, there is time for a court to rule on the validity of the law, and time to amend and strengthen the Bill accordingly.  All before the disclosure and buffer zones go into effect. 

Given the totality of the situation, passing Bill 2491 now is the responsible action to take.  We have taken prudent steps to cover our legal bases and now we must exercise our kuleana to protect the health and welfare of our community. 

Imua.  Let’s pass the Bill.

Note: There will be a meeting at the Kauai County Council on November 7 at 9am when the veto of Bill 2491 will be “put on the table” of the Council.  No Council action will be taken on this day — however public testimony will be permitted.  Then a subsequent meeting to consider whether to accept or override the mayor’s veto will be scheduled.

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Email To Mayor – Legal Review Written To Oppose

Posted on November 3, 2013 by garyhooser

I am a Kauai resident and a voter. I, like so many Kauai residents, was sorely disappointed in you for vetoing Bill 2491. As a retired attorney who spent his entire career as a staff attorney, Regional Attorney and Regional Director enforcing the law for an agency of the Federal Government, I was particularly appalled by the process by which this veto was accomplished.

During my career, I have prepared for my superiors and had prepared by my subordinates many legal position papers. The function of such papers is to provide a balanced assessment, pointing out the pros and cons on the legal matter in question, and leaving it to the decision-maker to make the final judgment. The 66-page “confidential” legal position paper you released to the public clearly was intended to advance every conceivable legal argument against Bill 2491, without providing the counter arguments.

Either you requested that it be prepared in that manner or your legal staff did you a grave disservice. In either case, the people of Kauai have been denied a fair assessment of the legal merits of the Bill.

Joe Norelli
Kauai Hawaii
This email was sent to the Mayor on November 2 and is printed in its entirety and published here with permission:

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Bill 2491 Veto No Veto – What Is Next?

Posted on October 31, 2013 by garyhooser

I would like to say that my phone has been ringing off the hook all day, but actually my phone has not been “on the hook” for over 10 years now and no longer rings in the traditional sense. But yes, I have been deluged with email and text messages for the past 24 hours and the question is always, “What’s he going to do?”.

The truth is I do not have a clue, but it is fun to speculate.

Tomorrow, October 31, 2013 our Mayor is facing three choices, one of which will have to occur by the end of day. He can:
1) Sign Bill 2491 into law
2) Veto Bill 2491
3) Do nothing and let Bill 2491 automatically become law

Conventional wisdom is that the Council passed Bill 2491 by a 6 to 1 vote and thus would be “veto proof” as only 5 votes are needed to over-ride a veto. The math starts to get a little funny however when you throw into the equation the fact that one of the Yes votes is leaving the Council and going to work for the Mayor. This of course still leaves 5 Yes votes plus one unfilled seat. The math can quickly get a little cloudier if you believe that perhaps at least one of those 5 remaining votes may not be firm in their resolve and thus the strength of the over-ride vote may be called to question.

Given the 6 -1 vote, why might the Mayor even be considering a veto?

Typically there is only one real reason and that is political. All other reasons are normally a smokescreen that provide cover for the political decision.

The Mayor could argue the new law would be difficult to implement. However in this case the Mayors own incoming administrative assistant voted twice in support of the Bill and was essential to the Bill’s passage. It will be her job to implement and she is intimately familiar with the Bill and helped craft many of its key elements.

The Mayor could argue the Bill will be overturned in court. Again, 6 council members including the Mayors new administrative assistant have reviewed the same information as has been provided to the Mayor and voted in support, not once but twice. In addition 9 well known attorneys have attested to the soundness of the Bill and 3 different major public interest law firms have offered to defend the Bill and defend the County for free – pro bono as they say in legal circles.

The Bill was written (as suggested by the Mayor’s new administrative assistant) to allow for 9 months prior to implementation. This provides 9 months to work out the enforcement provisions and 9 months to deal with any legal issues that might come forth prior to implementation and prior to any significant costs incurring.

So the reality is that this decision is all about politics. It is not a bad thing, it is just the reality of decision making in a political environment.

On one hand you have 5 companies who are pushing hard on the Mayor claiming that this will be bad for business, that passing Bill 2491 into law will send a negative signal out into the business community and is based on fear and not fact.

On the other hand you have thousands of residents willing to march in the streets. You have a committed cadre of young idealists willing to sleep on the cement in the pouring rain for something they believe in. You have a long list of credible doctors, lawyers, teachers and business owners from all parts of the island. You have obstetricians and pediatricians who believe that their hospital has 10 times the national average of birth defects. You have the Hawaii State Teachers Association, the Hawaii Nurses Association, Local 5 Hotel Workers, The Surfrider Foundation, The Sierra Club and many, many other organizations who have worked and fought hard and will continue pushing hard should the Mayor veto.

You have an issue that will not go away unless dealt with in a meaningful manner. You have a new and rising movement of empowered, thoughtful and educated young people that are even now converting their 5,000 petition names into registered voters, all the while seeking out new and aspiring candidates for public office in elections that are less than one year away.

Bill 2491 is a reasonable attempt to deal with a very real problem in our community. I am cautiously optimistic that the Mayor will allow this measure to pass into law so that we might honor the process, deal responsibly with the issue, and then move on to other pressing challenges that face our community.

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The 3 most frequent questions about Bill 2491

Posted on October 20, 2013 by garyhooser

#1 Question: The Council voted 6 to 1 in support, can the Mayor still veto Bill 2491?

Answer: To be clear, the Mayor has the authority to veto regardless of how many votes the Council members cast in support.  The Mayor has the authority to veto and the Council has the authority to over-ride that veto with a minimum of 5 votes needed to do so.  The Mayor has three choices: Sign, veto or do nothing.  Doing nothing means the Bill automatically passes into law without his signature after 10 days (clock started on Friday). 

#2 Question: Should I be contacting the Mayor and asking for his support?

Answer: Absolutely! Please send a personal message to mayor@kauai.gov

Question: Some people are saying the Bill is “watered down”.  Is it still a good Bill?  Is it legally sound?

#3 Answer:  The Bill is solid, well written and will provide important health and environmental protections to our community.  Yes, major sections were removed from the Bill during the amendment process however it retains its core provisions: Disclosure, buffer zones and a comprehensive study that will analyze health and environmental impacts.  Bill 2491 has a solid legal foundation: Read the below comments by 9 different prominent attorneys attesting to the legal soundness of Bill 2491.

Bill 2491 is legally sound: http://hawaii.news.blogs.civilbeat.com/post/63018006156/local-attorneys-lend-support-to-kauai-gmo-and

Civil Beat says “After a marathon hearing, the Kauai County Council passed a hotly debated bill on Wednesday that could lead to prison time or fines for employees of agricultural companies if they don’t divulge specifics about pesticide use, abide by strict setback rules for spraying chemicals or disclose when they grow genetically engineered crops.” http://www.civilbeat.com/articles/2013/10/16/20164-kauai-county-crosses-the-rubicon-council-passes-pesticide-and-gmo-bill/

According to the Grist “Kauai matters because it’s the first place in the U.S. to pass a tough GM regulation that could actually affect the industry. Other places have cracked down harder on GM plants — Mendocino County, Calif., banned them, for instance — but they don’t matter to biotech the way Kauai does.”

http://grist.org/food/an-anti-gmo-wave-rising-from-kauai/?utm_source=newsletter&utm_medium=email&utm_term=EDIT%20Daily&utm_campaign=daily#disqus_thread

More on legal implications: http://thegardenisland.com/news/local/attorneys-to-mayor-sign-bill/article_51454254-394b-11e3-bd49-0019bb2963f4.html
The Huffington Post: http://www.huffingtonpost.com/2013/10/16/kauai-gmo-hearing_n_4108914.html

The New York Times says: http://www.nytimes.com/2013/10/08/business/fight-over-genetically-altered-crops-flares-in-hawaii.html?_r=1&

PBS gives a decent 8 minute over view of the base issues: http://www.pbs.org/newshour/bb/environment/july-dec13/hawaiigmo_10-20.html

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A Way Forward – Bill 2491

Posted on October 13, 2013 by garyhooser

The kabuki unfolding in the Council Chambers has crossed over to the absurd.   We blast the State for its dereliction of duty, all the while pointing to them as our savior.  We bang on the State for their incompetence and then beg them to rescue us. We bemoan our lack of resources and ability to enforce the law while ignoring our ability to charge the agrochemical industry to provide those very same resources necessary for enforcement. 

While the industry sprays tons of poisons in our community, refuses to provide the council with even the most basic information, and threatens to sue us for the right to spray pesticides near schools, we smile and continue to act like all is ok. We assume that if we just shared a little bit more aloha we could achieve a “win-win” while all the while hoping like hell the State or someone else will step in to solve our problem.

Many in our community believe in their hearts and souls that harm is occurring to their health and to our natural environment because of the practices of large agrochemical companies operating on Kauai. 

Physicians who practice at Kauai Veterans Memorial Hospital on Kauai’s west side have stated in writing their belief that a significantly higher rate of congenital heart defects exists among newborns in their community.  Other physicians have stated similar concerns with regards to certain forms of cancer as well as a higher incidence of nose bleeds, asthma and other conditions.  They acknowledge that no long term, peer-reviewed scientific studies have been done on Kauai regarding this situation.  But they believe something is going on in their community that is not right, and they are concerned enough about it to offer public testimony in support of passing Bill 2491.

When the men and women in our community whom we trust to deliver our babies step forward and say they believe we have a problem, that is enough for me.

Certainly this is enough to justify full disclosure, modest buffer zones and a comprehensive study of health and environmental impacts.

Add the concerns of west side physicians to those expressed by a majority of pediatricians from all around Kauai County combined with the Hawaii Nurses Association, the Hawaii Teachers Association and over 150 residents of Waimea Valley who have filed suit against Pioneer Seed.

To be clear, resolving this issue is not simply about passing Bill 2491, but about determining as quickly as possible whether or not harm is occurring in our community and then acting accordingly. 

Good decision making starts with good information. Until these large companies are willing to provide our community with the basic information and disclosure requested in the Bill, no meaningful study of impacts can be conducted. 

The three remaining provisions in Bill 2491 are essential.

#1) Disclosure – The people have the right to know.

#2) Study/Report – Is harm occurring and what can be done?

#3) Buffer Zones – Interim action offering modest increased protections.

Personally, I believe an immediate moratorium on expansion is needed.  However, the political will for taking such action at the County level does not exist at the present time.

I agree with those who believe the State has failed us and that the State should step up to the plate with more money, more inspectors and more commitment.  .

We must pass Bill 2491 now and we must also reach out aggressively to the State and Federal governments.

We are all in this together.  All levels of government and our entire community share responsibility for resolving this issue.

But let us not delude ourselves into thinking that the four agrochemical corporations are going to help us in this effort.

These companies have never supported any legislation whatsoever that attempts to put greater public protections in place. They spend millions of dollars every year to fund political candidates and run public relations campaigns designed to defeat any and all efforts that might be seen as affecting their profits.  From the Monsanto Protection Act at the Federal level, to SB727 at the State legislature, to squashing Bill 2491 at the County level. 

These companies are focused in doing whatever it takes to control government regulation and they are used to winning in whatever field they play in. 

I am hopeful that on Tuesday my colleagues on the Council will see fit to vote in support of the very modest proposals contained within Bill 2491. We need to move forward and bring resolution to this very important issue. Passing Bill 2491 is the first step.

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Retired Hawaii Supreme Court Justice Joins Top Hawaii and National Attorneys In Support of Bill 2491 –

Posted on October 3, 2013 by garyhooser

“We feel it would be unfortunate if the Council were to allow any well-financed opponent to determine public policy merely by threatening to sue. But if a vote is being based on the belief that the Bill will be struck down, we see no meaningful basis for that concern.”   Concluding paragraph in “guest commentary” published in The Garden Island October 2, 2013.

Signed:

Paul Achitoff – Managing Attorney, EarthJustice

George Kimbrell – Senior Attorney, Center For Food Safety

Peter Schey – President/Attorney, Center for Human Rights and Constitutional Law

Justice Steven Levinson (Retired – Hawaii Supreme Court)

Alan Murakami – Attorney (personal capacity)

Teresa Tico – Attorney and former President Kauai Bar Association 

Kapua Sproat – Attorney and Law Professor, Richardson School of Law

Harold Bronstein – Attorney, Kauai

Elif Beall – Attorney, Kauai

*********************************************************************

Guest Commentary published in The Garden Island

Council Should Proceed With 2491

The Kaua’i County Council will soon vote on an amended Bill 2491, requiring disclosure by the major users of restricted, experimental and general use pesticides, create pesticide buffer zones around schools and waterways and study the health, environmental and socioeconomic impacts of the widespread use of these pesticides and the production of experimental genetically engineered plants. The original version also sought to freeze the status quo concerning such production—halt its expansion—while that study is being conducted. The Council has received a great deal of testimony from the general public and from individuals and experts in relevant fields in an admirable effort to make a deliberate, well-informed decision.

It is the responsibility of Council Members to decide whether or not Bill 2491 represents good and necessary public policy. But there’s been much debate about whether Bill 2491 is legally sound, regardless of how necessary it might be. Industry opponents have threatened litigation, and some Council Members have made concerns about the bill’s lawfulness the cornerstone of public statements on how they may vote.

No thoughtful, experienced attorney will offer blanket assurances about how any lawsuit will be decided, and the bill presents some cutting-edge legal issues. But the State expressly granted the County the authority to protect the health, life, and property of its people from just these kinds of threats. No law expressly prohibits the County from taking this action, and no court cases clearly block the County from passing and implementing this Bill. Moreover, ordinances with similar provisions have been passed elsewhere and have not been successfully challenged.

We believe that Bill 2491 is sound, and the mere threat of a lawsuit by industry interests should not prevent the Council from taking action they believe is important to their community. Attorneys experienced in these issues have given the Council volumes of detailed legal analysis supporting the bill’s legality, discussed these issues with the Council, and made their analyses publicly available for critique. Yet Bill 2491’s opponents haven’t supported their campaign of intimidation with any legal explanations.

We feel it would be unfortunate if the Council were to allow any well-financed opponent to determine public policy merely by threatening to sue. But if a vote is being based on the belief that the Bill will be struck down, we see no meaningful basis for that concern.

Signed:

Paul Achitoff – Managing Attorney, EarthJustice

George Kimbrell – Senior Attorney, Center For Food Safety

Peter Schey – President/Attorney, Center for Human Rights and Constitutional Law

Justice Steven Levinson (Retired – Hawaii Supreme Court)

Alan Murakami – Attorney (personal capacity)

Teresa Tico – Attorney and former President Kauai Bar Association 

Kapua Sproat – Attorney and Law Professor, Richardson School of Law

Harold Bronstein – Attorney, Kauai

Elif Beall – Attorney, Kauai

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At the end of the night, it was a very good day.

Posted on September 28, 2013 by garyhooser

Last night, after an exhausting 12 hour meeting, the Kauai County Council Committee on Economic Development, Agriculture and Sustainability voted 4 to 1 to amend and to pass out of committee Bill 2491. The full Council will now consider and vote on the amended Bill.  That Council meeting has yet to be scheduled but could occur within the next 7 to 10 days.

Was this a victory?  The answer is a resounding YES. 

Is this enough?  The answer is a resounding NO.

While I continue to review the details of the entire very comprehensive and complex amendment that was passed last night – it appears that 50% of the Bill survived the amendment process.

The key and heart and soul of the entire effort, “the right to know” disclosure provision was made even stronger than originally introduced. 

The disclosure provision is arguably the most important element of the Bill and is what the agrochemical companies are most concerned about – and this provision emerged from the process robust and strong.  The buffer zones are intact but need to be strengthened.  The EIS provision was converted into an alternative study but I believe will serve the purpose needed to determine health and environmental impacts of this industry.  The moratorium did not make the cut but interestingly the companies seem to be willing to sign an agreement limiting expansion.

Thank you to all who have worked so hard on this effort.  Yesterday’s outcome was a significant win but much work is needed to strengthen the Bill that now moves to the full Council. 

You can be sure that the industry pushback will be strong and swift.  It is likely we will hear from their lawyers again as they renew their effort to bully the County into submission.  It is also likely that there will be more press releases, more pronouncements’ from State government officials, more full page ads in the newspaper and more letters from the Chamber of Commerce.

Please let Council Members JoAnn Yukimura and Nadine Nakamura how much their work is appreciated in helping to pass Bill 2491.  Without their willingness to do the heavy lifting and writing of the amendments, this very important measure could have remained in limbo for a long, long time.  Tell them mahalo…and yes please tell them we need a stronger version that includes better buffer zones and a moratorium commitment that includes the entire island of Kauai.  Even though he is not on the Committee and was not able to vote last night, Bill 2491’s co-introducer Council Member Tim Bynum provided invaluable support during last nights deliberations and deserves a huge mahalo as well.

To be clear: Bill 2491 can be further amended during the full Council meeting that will be scheduled in the near future.  It can be made stronger or it can be made weaker during this meeting and this effort is not over until the full Council votes and the Mayor signs Bill 2491 into law.

 Imua! gh

Amendments:

1)      The core of the issue – “The Right To Know” was preserved and strengthened.  Should Bill 2491 pass out of the full Council in its present amended form companies will have to disclose to the world the chemicals they are using on our island.   They will have to tell us what pesticides they are using, how much they are using and where and when they used it.  And they will have to tell us what GMO crops they are growing as well.

2)      Buffer Zones – While I believe this section needs significant strengthening, the amended Bill includes buffer protection zones around schools, hospitals, homes and many other areas.  To be clear this section IMHO needs to be expanded and I am hopeful this can be done in the upcoming Council meeting.

3)      Health/Environmental Impact Study – The amended Bill requires the County to conduct a study following a comprehensive process designed to ensure the end product is comprehensive and includes the detailed medical and environmental data gathering and analysis required for solid future decision making.  While not following the 343 EIS process which I preferred and was outlined in the Bill, this is an alternative path to the same objective.

4)      Prohibition of open air testing of experimental pesticides and experimental GMO’s – These provisions were deleted and are not included in the “moving forward Bill 2491”. 

5)      Permitting – This provision was deleted.  I attempted unsuccessfully to retain this provision by amending the words “shall” to “may” and thus retaining the option of the County to implement permitting.  However, those introducing the amendments decided this provision could be passed into law at a future date, after the study was completed and if the study showed a specific need for permitting.

6)      Moratorium – This provision was deleted and was perhaps my biggest disappointment.  However apparently the 4 agrochemical companies are prepared to sign a written agreement that they will not expand their operations north of the Wailua River for a period of time that I believe was two years or until the County Health and Environmental study was completed.  While at first it may seem like a welcome offer to those who live on the north and east shore, this proposal is offensive and unacceptable – and must include the entire island.

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