22
Nov
Court Knocks Down Local Pesticide Restrictions on Private Property in Hawaii, Upholds Restrictions on GE Crops
(Beyond Pesticides, November 22, 2016) Last week the 9th U.S. Circuit Court of Appeals struck down local county laws aimed at protecting residents’ health and the environment in Hawaii. The ruling, handed down by federal Circuit Judge Consuelo M. Callahan, finds that Hawaii state law is comprehensive in regulating pesticides, and “impliedly preempts” local jurisdictions from passing laws with stricter standards than the state’s. The decision represents a victory for Monsanto, Syngenta, and the agrichemical industry, and a blow to the efforts of grassroots activists that say Hawaii is “ground zero” for toxic and experimental pesticide and genetically engineered (GE) crop use.
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udge Callahan’s ruling overturns a number of laws passed over the last several years on different Hawaiian Islands that all aim to protect residents, the environment, and organic farms from the toxic effects of pesticide use and drift from GE cropland. This includes Bill 2491, a measure in Kauai County that imposed common-sense buffer zones for pesticide use within 500 feet of schools and medical facilities, and within 100 feet of any park, public roadway, or shoreline that flows into the ocean. The bill withstood heavy industry lobbying, passed by a vote of 6-1 after a 19-hour council session, was vetoed by the Mayor, and overridden by the County Council. Also invalidated was Hawaii County’s Bill 113, which banned the production of GE crops in open-air conditions, carving out exceptions for crops that were already growing on the island. And, stopped in its tracks in Maui County, is a citizen initiative and lawsuit that defended a successful ballot initiative, which created buffer zones and temporarily banned GE crops from being planted on the island.
At issue in these cases is whether local jurisdictions within the state are prohibited (preempted) from enacting laws regulating pesticides and GE crops that are stricter than state law. The legal history provide context on this issue. In 1991, the U.S. Supreme Court, in Wisconsin Public Intervenor v. Mortier, ruled that federal pesticide law (FIFRA) does not preempt local jurisdictions from restricting the use of pesticides more stringently than the federal government. States retain authority to take away local authority, however. In response to the Supreme Court decision, the pesticide lobby immediately formed a coalition, called the Coalition for Sensible Pesticide Policy, and developed boilerplate legislative language that restricts local municipalities from passing ordinances on the use of pesticides on private property. The Coalition’s lobbyists descended on states across the country, seeking and passing, in most cases, preemption legislation that was often identical to the Coalition’s wording. Although attempts at this form of “explicit” preemption were tried in Hawaii, industry was unsuccessful there, as well as in six other states. However, under the legal theory of “implied” preemption, the chemical industry was able to successfully convince the court that, because Hawaii’s state pesticide law was “comprehensive,” it filled the role of pesticide regulation in the state and state law did not intend to allow localities the ability to further regulate pesticide use. For more information on preemption, see Beyond Pesticides article, State Preemption Law: The Battle for Local Control of Democracy.
In a singular bright spot, Judge Callahan, whose federal orders apply to nine states on the West Coast, ruled that states and localities may place additional regulations on GE crops after federal deregulation, as they are not preempted by governing law, the Plant Protection Act. This decision leaves in place bans on GE crop production that have passed at the county level in Oregon, California, and Washington. “It’s an important victory protecting and furthering the ability to create GE free zones,” said George Kimbrell, J.D, attorney for the Center for Food Safety to Civil Beat, which intervened to defend Hawaii localities. Despite this victory, the Judge did rule that federal law preempts states and localities from regulating field trials of experimental GE crops.
Advocates vow to continue their efforts to protect their local environment from toxic pesticide use. And legal experts are still considering their options for recourse. “The most important thing is we’re going to continue to stand and fight with the people of Hawaii against these chemical companies and push for better regulation of pesticides and of genetically engineered crops at every level,” Mr. Kimbrell said.
The fact is that localities across the country are pushing forward with pesticide reform because of mounting evidence that federal and state authorities are not doing enough to protect them. Not only are state and federal leaders failing to enact new laws and regulations that respond to the latest science, but they are neglecting to enforce weak laws already on the books. Earlier this year, EarthJustice requested that the Environmental Protection Agency (EPA) notify the Hawaii Department of Agriculture of its chronic failure to meet statutory duties for regulation and enforcement of FIFRA. While these issues remain unfixed, jeopardizing human health and the environment, this ruling denies Hawaiian communities effective measures to remedy inaction.
Local advocates hope that this ruling will increase pressure on the state to roll back preemption, or, at the least, take substantive action to protect the environment from hazardous farming practices. Signs are that some state legislators are listening. “What the decision makes clear is that it is the state’s responsibility to meaningfully protect against undue harm from pesticides, whether it’s to workers on a field or to kids in schools nearby, and we have an obligation to make sure that safety is paramount,” said Rep. Chris Lee, chairman of the Hawaii House Committee on Energy and Environmental Protection to AgWeb.
Beyond Pesticides encourages individuals to become familiar with whether you have preemption in your state, and if you do, join with us to eliminate these regressive laws. Under a new administration over the coming years, it will become more and more important to engage at the local and state level to protect health and the environment. Make sure you’ve signed up for Beyond Pesticides’ action alerts. If you’re ready to get active to fight for pesticide reform and roll back preemption in your community, contact Beyond Pesticides at 202-543-5450 or at [email protected] to get the resources you need to start your campaign.
Source: AgWeb, Civil Beat
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
