Supporters of more oversight on agribusiness expressed outrage Thursday at Kauai Mayor Bernard Carvalho’s decision to veto a bill that would require large farms to disclose the types of pesticides they use and implement buffer zones for spraying.
"I consider what the mayor did today as betrayal to the people of Kauai and betrayal of his duties to protect the health and well-being of the people of Kauai," said Andrea Brower, an advocate of Bill 2491 who testified in support of the measure.
Councilman Gary Hooser, a co-sponsor of the bill, said, "I believe the mayor made a grave error in vetoing this bill. He supports what we’re trying to accomplish, and yet he vetoes the bill. His … actions show a blatant disregard for the process, the public process, the legislative process."
He added, "I feel like he basically caved in to the pressure of the chemical companies."
Hooser, who co-introduced the bill with Councilman Tim Bynum, said the veto is certain to be subject to an override, which would require five votes.
"There’s no reason to think that any councilmember will change their vote," he said. The Council voted 6-1 on Oct. 16 to approve the bill.
When asked about his thoughts on an override, Council Chairman Jay Furfaro said, "I voted to support the bill originally, and there is nothing at this time that indicates to me that I have changed my position."
The Council has 30 days to override the veto. According to the County Charter, the Council has to set a date to acknowledge receipt of the veto.
The Council will then need to schedule another meeting to consider whether to accept or override it, said County Clerk Ricky Watanabe.
Bill 2491 calls for mandatory disclosure of pesticide use by agribusinesses and implementation of buffer zones near schools, dwellings, medical facilities, public roadways and waterways. Under the bill, agricultural companies would also be required to provide annual reports of genetically modified crops grown on fields to the county Office of Economic Development and state Department of Agriculture.
During a phone interview Thursday, Carvalho said he would enforce the bill if there is an override, but maintains the measure is legally flawed. He released a copy of a letter he sent to the Kauai County Council that sets out some of his reasons.
He also attached a 66-page county attorney’s opinion on Bill 2491 that details legal challenges the county will face.
"I felt the people should know of the legal issues before me," he said.
In Carvalho’s letter he said the state Department of Agriculture’s authority by the federal government to regulate pesticides pre-empts a local authority from enacting such laws. Citing the county attorney’s opinion, he wrote that "a reviewing court would likely find that Bill 2491 stands as an obstacle to the accomplishment and execution of the full purposes and objectives of the Legislature under the Hawaii Pesticides Law."
The bill will also likely be challenged as "an invalid exercise of the county’s police power, an invalid exercise of the county’s ability to regulate public nuisances, and/or a violation of theHawaii Right to Farm Act’s prohibition against any public official ‘declaring’ such farming operations a nuisance … if the farming operation has been conducted in a manner consistent with generally accepted agricultural and management practices."
Another legal concern was implementation and enforcement of the bill by the Office of Economic Development, which Carvalho emphasized is not a regulatory agency.
The Council would be in violation of the County Charter by assigning new functions to the OED, Carvalho said.
"The Council’s invasion into the executive branch with this bill not only runs contrary to the Charter, it also highlights the separation of powers’ purpose as a safeguard, given that the OED is not equipped to manage the bill’s requirements," he added.
Carvalho said he will continue to work with the state on a voluntary compliance program of disclosure and buffer zones for biotech companies. Details of the program are expected to be released within the next three weeks.
Alicia Maluafiti, executive director of the Hawaii Crop Improvement Association, which represents biotech companies, said, "(Carvalho) recognized the measure was legally flawed and puts the county at risk." Bill 2491 would hamper the entire agricultural industry, not just the seed industry, she said.
Syngeta, DuPont Pioneer, BASF and Dow AgroSciences, as well as Kauai Coffee, the largest coffee grower in the state, would be required to disclose the pesticides they use and implement buffer zones under the bill.
Maluafiti said it’s time for the community to start the healing process, as the issue has caused friction between family members and friends.
A large group of people stood outside the county building holding anti-GMO signs to await Carvalho’s decision because Halloween marked the 10-day deadline for the mayor to take action on the bill.
Earthjustice Attorney Paul Achitoff said the mayor’s reason citation of the farming law is ridiculous.
"The Right to Farm Act was enacted to restrict lawsuits by neighboring landowners, not legislators," he said. "If the county is not going to pass laws because the industry threatens to sue them, then they’re letting the industry set the agenda. They’re allowing the industry to bully them."
Carvalho said during the interview that he and his administration were never afraid of lawsuits against the county. Carvalho said he does support a resolution that calls for an environmental public health impact study.
The resolution will be heard by the Council’s Planning Committee on Nov. 13.
To view Carvalho’s letter to the Kauai County Council and the county attorney’s opinion on Bill 2491, go to www.kauai.gov.
