(Beyond Pesticides, August 27, 2014) Rulng that Hawaii state law preempts local authority to restrict pesticides, a federal court judge this week struck down Kauai County’s Ordinance 960. The ordinance, which received widespread support on the Island, was designed to protect local residents and Kauai’s environment from the year-round spraying of large quantities of restricted use pesticides by multinational chemical companies.
U.S. Magistrate Judge Barry Kurren on Monday ruled that Kauai County Ordinance 960 is preempted by state law and therefore is unenforceable. Ordinance 960 provides residents of Kauai public access to information related to the application of pesticides used in experimental and commercial agricultural operations within the County of Kauai. It also affords County residents and the environment greater protection from, and information about, potential pesticide drift and the impact of experimental genetically engineered (GE) crops on Kauai. The Kauai County Council voted to enact Ordinance 960 in November 2013, overriding the Mayor’s veto. The ordinance was scheduled to go into effect Aug. 16, but had been postponed to Oct. 1 pending the court’s ruling.
Local leaders crafted the ordinance in response to public outcry from residents, many of whom live, work, or have children that go to school near agricultural fields leased by chemical corporations. Many in the community believed that Ordinance 960 was the beginning of local efforts to reign in excesses and abuses of agrichemical companies operating on the island.
However, a lawsuit challenging the ordinance was brought against Kauai by industry giants, DuPont’s Pioneer Hi-Bred International, Inc., Syngenta Seeds, Agrigenetics, Inc, (owned by Dow Chemical) and BASF Plant Sciences LP, who argued that the County had no authority to regulate pesticides and GE plantings because state and federal laws did so already, and that the ordinance places unnecessary and unfair restrictions on their operations. The County and interveners – Earthjustice, the Center for Food Safety, Pesticide Action Network, and others, countered that the state law is limited in its scope and does not cover the same subject matter as Ordinance 960, leaving room for the County to expand on pesticide regulatory guidelines. Similarly, the County argues that when it comes to GE cultivation, state laws did not “expressly or implicitly” preempt the County from introducing its own GE guidelines. When Kauai introduced Ordinance 960 (then Bill 2491) it did so under the statutory grant of authority of the Hawaiian Revised Statutes, which provides that counties of Hawaii “shall have the power to enact ordinances deemed necessary to protect health, life, and property. . .” (HRS § 46-1.5(13))
However, Magistrate Judge Kurren, in his interpretation, concluded that, although the Hawaii Pesticide Law does not contain any provisions that actually conflict with Ordinance 960’s requirements, the state law’s broad scope implied that the Hawaii 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.
“This decision in no way diminishes the health and environmental concerns of the people of Kauai,” U.S. Magistrate Judge Barry M. Kurren wrote in his decision. “The court’s ruling simply recognizes that the State of Hawaii has established a comprehensive framework for addressing the application of restricted-use pesticides and the planting of GMO crops, which presently precludes local regulation by the county.”
After the passage of the Federal Insecticide Fungicide and Rodenticide Act (FIFRA), the issue of federal preemption of local ordinances concerning pesticide regulation made its way to the U.S. Supreme Court, which ruled in 1991 that FIFRA does not preempt local jurisdictions from restricting the use of pesticides more stringently than the federal government. The ability of states to take away local authority, however, was left in place. The pesticide lobby immediately formed a coalition, called the Coalition for Sensible Pesticide Policy, and developed model legislation that would restrict local municipalities from passing ordinances regarding the use or sale of pesticides on private property. The Coalition’s lobbyists descended upon states across the country, seeking and passing, in most cases, preemption legislation that was often identical to the Coalition’s wording.
Twenty-nine states have nearly identical preemption language that explicitly preempts localities from adopting stricter legislation that would regulate the use of pesticides; 14 do not have explicit preemption language. However, they delegate all of the authority to regulate pesticide law to a commissioner or pesticide board. This implies that localities seeking more restrictive pesticide regulations could petition the commissioner for a variance from the states pesticide law. Five states that vest exclusive regulatory authority in their commissioner specify that localities can petition the commissioner for exemptions to these pesticide regulations, and seven states do not preempt local authorities’ ability to restrict the use of pesticides on any land within their jurisdiction. Some of these states have no regulations that would preempt local authority and others have specific language written in that reaffirms localities’ authority. For more information, read State Preemption Law: The battle for local control of democracy.
State preemption laws effectively deny local residents and decision makers their democratic right to better protection when a community decides that minimum standards set by state and federal law are insufficient. Given this restriction, local jurisdictions nationwide have passed ordinances that restrict pesticide use on a town’s public property, or school districts have limited pesticides on its land. As pesticide pollution and concerns over the effects of GE crops on human and environmental health mount, many are fighting to overturn preemption laws and return the power back to localities, enabling them to adopt more stringent protective standards throughout their communities.
The defendant-interveners are currently analyzing all legal options, including appeal. Four 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 Kauai County, and have since helped to defend the ordinance in legal filings.
Earthjustice attorney Paul Achitoff said the court’s decision was disappointing. He said, “It has unfortunate consequences on Kauai and throughout the state. The state has shown complete disregard for problems that the pesticides on Kauai has been causing.”
This latest decision also calls into question the future of other local pesticide regulatory efforts in other Hawaii counties. Big Island Mayor Billy Kenoi said Hawaii County attorneys are analyzing its applicability to an ongoing case that challenges the Big Island’s ban on any new GE crops. However, the Hawaii County ordinance does not deal with pesticides. Similarly, Mayor Alan Arakawa of Maui County said that the Kauai court decision may be instructive for residents who will vote on a county ballot initiative this fall to ban GE crops in Maui, and the county’s attorneys are also reviewing the decision.
Gary Hooser, the Kauai councilman who sponsored the bill (Ordinance 960), also said that he expects the ruling to be appealed. “It’s just another round in the ongoing battle,” he said. “It’s far from over.” He criticized the biotechnology companies for not doing more to protect the health and safety of Kauai residents.
Beyond Pesticides continues to be an ardent supporter of Kauai’s commonsense protections from pesticides and their associated use on GE crops. Given the impending approval of GE crops designed to withstand applications of the highly toxic herbicide 2,4-D, these protections are more important than ever.
Read Beyond Pesticides testimony in support of Ordinace 960 for additional information. If you’d like to become involved in a campaign in your community, send an email to firstname.lastname@example.org, or call 202-543-5450.