Meeting set on veto of Kauai GMO bill

The Kauai County Council will hold a special meeting at 9 a.m. Thursday to acknowledge receipt of Mayor Bernard Carvalho Jr.’s veto of the controversial Bill 2491.

The date on a subsequent meeting to consider whether to accept or override the mayor’s veto might be announced at next week’s meeting to be held in the historic county building’s County Council chambers. No action will be taken.

The Council has 30 days from the date the mayor vetoed the measure, Thursday, to override it.

Bill 2491 would require large farms to disclose the type of pesticides they use on fields and implement buffer zones to prevent spraying near schools, dwellings, medical facilities, public roadways and waterways. The bill also would require agribusinesses to provide annual public reports on genetically modified crops grown on fields to the county Office of Economic Development and state Department of Agriculture.

The county attorney’s opinion released Thursday by Carvalho detailed legal concerns of the bill’s disclosure provision that include pre-emption by the federal and state governments and trade secret privilege as well as concerns of the buffer zones provision.

The mayor’s veto disappointed bill supporters and some councilmembers who advocated disclosure by biotech companies to protect public health and the island’s environment.

Council Chairman Jay Furfaro sent a written statement to the Hono­lulu Star-Advertiser on Friday saying he is "deeply disappointed" in the mayor’s decision. "It was my hope that the mayor would allow the bill to become law with or without his signature and, should the seed companies or other organizations feel that it is illegal, they would take action and have it challenged in court by way of a declaratory action," he said, noting it was the state’s inaction on concerns of pesticide exposure that led the Council to address the issue.

The Council has spent almost 90 hours in meetings on the bill since its introduction in June to its adoption in mid-October. More than 5,500 verbal and written testimonies were made on the issue, but members of the public may have been allowed to testify multiple times via verbal and/or written testimony at each meeting held since the introduction of the bill.

Furfaro said, "In considering our obligation to the citizens of Kauai, the Council erred on the side of protecting the public’s health, safety and welfare, which is the primary duty of government."

Since the mayor’s veto, the Kauai Police Department reported Friday that Carvalho has received threats via phone, email and social media. Police Chief Darryl Perry said some were veiled threats. At this time police are focusing on one threat of physical harm against the mayor made via social media by an individual believed to be a male.

"We take this very seriously," said Perry during a phone interview. Kauai police will consult with the Federal Bureau of Investigation to adopt the investigation to prosecute suspects at the federal level.

Law enforcement is also investigating threats made via social media against biotech companies about burning their fields on the island. Officers are conducting periodic checks of the fields and informed company representatives of the threats.

Anyone who has information of potential harm against the mayor or properties leased or owned by biotech companies is asked to report it to Kauai police at 241-1711.

Earthjustice attorney Paul Achitoff said the county attorney’s office should not have used the Hawaii Rules of Evidence to show the need for trade secret privilege because the rules apply to proceedings in Hawaii courts during litigation. "They have nothing to do with what the County Council can or cannot require in an ordinance. This part of the county attorney’s opinion therefore makes no sense," he said.

Of buffer zones, the county attorney’s office questioned whether the Council’s prohibition on growing crops in buffer zones is a valid use of its police power. Achitoff said the county attorney wrongly appeared to assume the county must show that prohibition is a proper use of its authority. It was entirely reasonable for the Council to view a crop-free buffer zone as the most practical, efficient way to protect the public and enforce the ordinance. "The ‘heavy burden’ will be on the chemical industry to prove otherwise," he added.