Saturday, January 11, 2014

The legal challenge to anti-GMO Bill 2491 is filed: details (updated)

The other shoe has dropped in Kaua`i County’s intensely regulation of companies that grow genetically modified crops and use restricted-use pesticides.

Attorneys for three Kaua`i-based seed companies filed suit late Friday, January 11, 2014 , demanding that the Kaua`i County Council’s controversial Bill 2491 be invalidated. Supporters of the bill, which became county Ordinance 960 but is better known by its bill number, argued the court challenge is flawed, but did so without reference to any specific provisions, suggesting they had not reviewed it.

"The chemical industry has been using bullying and misinformation all along to try to derail this law. They consider their impacts on the health of Kauaʻi’s residents as collateral damage. We look forward to defending Kauaʻi’s families and its environment, and are confident justice will prevail," said Earthjustice Managing Attorney Paul Achitoff noted.

George Kimbrell, Senior Attorney with the Center for Food Safety, said “Kauaʻi’s ordinance is a sound and well-crafted law. The industry’s challenge is without merit, and we will vigorously defend it.”

Neither Earthjustice nor the Center for Food safety is a party to the lawsuit.

The seed companies filing the action are Syngenta, Pioneer Hi-Bred and Agrigenetics, which is associated with Dow AgroSciences. The bill also impacted seed company BASF Plant Science which was not listed, and neither was Kauai Coffee, which was regulated by 2491 based on its use of restricted pesticides, not because of genetically modified crops.

The attorneys ask, in an action filed in U.S. District Court in Honolulu, that 2491 be declared in violation of numerous county, state and federal laws, and that the county be prevented from enforcing it.

It is an omnibus complaint, bringing to bear a great mass of argument on behalf of the West Kauai big agriculture companies. It also goes far beyond the Kaua`i County Attorney’s opinion, on which was based Mayor Bernard Carvalho’s overridden veto of 2491.

The legal challenge argues that that the county can’t regulate activities already regulated by state and federal agencies

It argues that 2491 violates the U.S. Constitution by arbitrarily picking on the big agriculture companies, and not anyone else engaged in the same activities.

It argues the bill is a violation of Equal Protection provisions in imposing restrictions and penalties without what it calls a legal or factual basis.

It says the bill effectively condemns property without compensation, a “taking,” by preventing agricultural companies from growing crops on land within buffer zones. 

It also says that the Council was able to override a mayoral veto only after, in violation of state law, selecting a new Council member favoring the override.

The complaint argues that the bill violates the county charter provision that an ordinance be about just one thing. It is perhaps the simplest of the arguments. The charter says: “every ordinance shall embrace but one subject, which shall be expressed in its title.” But 2491 quite clearly embraces two, as expressed in its title, which cites pesticides AND genetically modified organisms.

It argues that the county can’t regulate pesticides, since “the Hawai`i Pesticides Law exclusively and uniformly governs the use of pesticides throughout the state.”

It says genetically modified crop can’t be harshly regulated in the absence of any hard evidence of harm.

It says the state’s “Right to Farm Act” prevents agencies from declaring any farming operation a nuisance if it has been operated in accordance with law and generally accepted agricultural practices.
It says 2491 requires disclosures that are prohibited by the Federal Insecticide, Fungicide, and Rodenticide Act.

It argues that requiring companies to disclose what they’re growing and where puts them at risk of commercial spying as well as vandalism.

“The restrictions imposed by Bill 2491 are not rational,” the lawsuit says. And many of the assertions that form the basis for the 2491 regulation are simply wrong, it says.

There’s lots more in the 70-page complaint. 

A very brief history of 2491: It was launched earlier this year by the Council, accompanied by marches and mass protests over GMOs, pesticides, dust and other issues. It passed the Council but was vetoed by the mayor. 

The Council was one vote short of enough votes to override, but was also one member short due to a job change by a Council member. The majority appointed a new Council member, whose vote provided the last vote required for the override.

The passed version of 2491 is somewhat watered down from the original, but still limits pesticide use in certain areas, requires considerable public disclosure of agricultural activities, sets buffer zones were the impacted companies are prevented from operating, and calls for a major investigation into the impacts of big ag on the island.

Several attorneys for environmental firms or on behalf of bill supporters said they would help defend the county against the anticipated court challenge. But it is not clear whether the county will allow attorneys to work gratis on its behalf, when their interests may not align perfectly with the county's interests.

The county’s additional challenge is to determine how to defend a law that the county attorney’s office declared legally flawed.

© Jan TenBruggencate 2014

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