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Synopsis/Excerpts from County Attorney Opinion

to Mayor Carvalho Dated October 24, 2013

 

 

The County Attorney begins its opinion by acknowledging that this is only an opinion and that “a finding of ‘illegality’ does not mean a reviewing court will not apply the law differently and or evaluate the facts and circumstances in such a way as to render the ordinance legal.” (page i)

 

It is also important to note that most of the court cases cited in the CA opinion are from other states, and usually have little if any significance in Hawaii.  The County Attorney acknowledges that many of “the specific questions presented by Bill No. 2491 have not yet been answered in any Hawaii Court.” (page 41)

 

The County Attorney addresses the following specific possible legal challenges and conclusions:

 

1. “Police Power”

 

“The County Attorney’s Office asserts that the County has the general authority to enact laws under the police power.”  (page 39)

 

2. Nuisances

 

“The County Attorney’s Office asserts that the County of Kauai has the clear authority to regulate public nuisances generally, but not private nuisances.” (page 40)

 

The County Attorney asserts that HRS 165, Hawaii’s Right to Farm Act might be used as a challenge to 2491. “Although the applicability of HRS Chapter 165 to the issue of the County council’s treatment of pesticides and GMOs is disputed, the County Attorney’s office asserts that the provisions of HRS Chapter 165 would in fact apply to prevent the tenets of Bill No. 2491 from “declaring” the subject farming operations, including pesticide use and propagation of GMO products . . . to be a nuisance.” (page 41)

 

The County Attorney does not point to any place in the language of 2491 that declares anything a “nuisance.”

 

The Honolulu Star Advertiser published a critique of this point on November 1st:

 

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."

 

Source: “Kauai mayor vetoes pesticides bill” at StarAdvertiser.com

 

3. Pre-emption re: Pesticide Regulation

 

Federal law

 

The County Attorney concludes, “It is obvious that FIFRA [the Federal Insecticide, Fungicide, and Rodenticide Act] would not preempt the Council from enacting Bill No. 2491.” (page 42)

 

State law

 

The County Attorney concludes that “It is apparent from its text that the Hawaii Pesticides Law does not expressly preempt the counties of Hawaii from regulating Pesticides.” (page 42)

 

The County Attorney states that “to the extent that the current bill still regulates pesticides, a reviewing court would likely find the Hawaii Pesticides Law impliedly preempts the County from enacting any and all portions of Bill 2491 relating to Pesticides, and or the tenets of the bill actually conflict with the Hawaii Pesticides Law.” (page 47).  However, the County Attorney does not clearly specify which portions of the Bill might be preempted.  Disclosure? Buffer zones?

 

 

4. Pre-emption re: GMO Regulation

 

Federal law

 

The County Attorney states, “To the extent that Bill No. 2491 regulates GMO products, the County will face express preemption challenges under the Plant Protection Act”, but does not point out how the Bill regulates GMO products. (page 47).

 

The County Attorney lists several objections that “opponents of the bill” will raise, including the Plant Protection Act, and the argument that “any and all crops currently grown under the auspices of the PPA that are within the stream of foreign or interstate commerce will be protected by the preemption doctrine.” (page 47) 

 

 The County Attorney states, “At this time, the County Attorneys Office is not aware of a case that definitively addresses these specific legal claims pertaining to preemption.” (page 48) but concludes, “[our] advice is that it is plausible that a reviewing court will find that Bill No. 2491 is preempted by federal.” (Page 48)  Presumably, this is referring to the requirement in the Bill to disclose GMO crops.

 

5. Disclosure of Pesticides

 

The County Attorney raises concern that mandatory disclosure of pesticide use will be challenged by opponents on the grounds that that is trade secret under Hawaii Rules of Evidence Rule 508. (page 49-50)

 

The Honolulu Star Advertiser published a critique of this point on November 2nd:

 

 

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.

 

Source: “Meeting set on veto of Kauai GMO bill” at StarAdvertiser.com

 

The County Attorney raises the issue that Bill 2491’s requirement of pesticide disclosure may be preempted by a state law, Act 105, passed June 14, 2013 that requires online posting of certain restricted use pesticide records.  The office concludes that, “the Hawaii pesticide law is a comprehensive state statutory scheme disclosing an implied intent to be exclusive and uniform throughout the state irrespective of the fact that nowhere in the law are counties expressly prohibited from regulating pesticides.” (page 51)

 

6. Disclosure of GMOs

 

The County Attorney raises the same concern here as above, that mandatory disclosure of GMOs use will be challenged by opponents on the grounds that that is trade secret under Hawaii Rules of Evidence Rule 508. (page 51) However, it is questionable how this Rule of Evidence applies. Again, the Honolulu Star Advertiser published a critique of this point on November 2nd:

 

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.

 

Source: “Meeting set on veto of Kauai GMO bill” at StarAdvertiser.com

 

The County Attorney also states disclosure “will face federal and state preemption challenges”, (page 52), but lists many federal laws that apply to food additives, and food safety issues, and that the “County Attorney remains confident that federal preemption challenges or variations thereof will be mounted against the County due to mandatory disclosure sections.” (page 53).  But the County attorney does not address whether or not these challenges have merit or are likely to succeed.

 

7. Pesticide Buffer Zones

 

Reasonableness

The County Attorney states that, while “[i]t has been established that the county of Kauai does have the general power to enact ordinances on the police power,” “a municipal law must be reasonable; that is it must be fair, general and impartial in operation and must achieve legitimate governmental objectives.” (page 54)

 

“The County Attorney anticipates that any challenges to Sec. 22-22.5 [of 2491] will assert that it is unreasonable for the County to require that commercial agricultural entities that buy certain quantities of restricted use and experimental pesticides will be prohibited from growing “crops” in certain areas whether or not pesticides are used.” (page 54)

 

The Honolulu Star Advertiser published a critique of this point on Nov. 2nd:

 

[Earthjustice attorney Paul ] 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.

 

Source: “Meeting set on veto of Kauai GMO bill” at StarAdvertiser.com

 

 

State Preemption

That County Attorney writes in this sections, “The second challenge that Sec 22-22.5 will face will be state level preemption,” and suggests that existing laws (not specifically cited) allow “the growing of crops anywhere within lands zoned for agricultural use.” (page 55). 

 

The County Attorney also refers to HRS Chapter 165, Hawaii’s “Right to Farm” Act. As noted above in Section 2, “Nuisance”, the County Attorney does not point to any place in the language of 2491 that declares anything a “nuisance.”

 

The Honolulu Star Advertiser published a critique of this point on November 1st:

 

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.

 

Source: “Kauai mayor vetoes pesticides bill” at StarAdvertiser.com

 

 

8. Environmental and Public Health Impacts Study (EPHIS)

 

The County Attorney concluded, “No laws prohibit or preempt the county from conducting Environmental and Public Health Impacts Study (EPHIS) as described in the Bill. However there may be a separation of powers issue that is raised because it appears that the Council may try to direct how the study will be conducted via resolution.” (page 56)

 

 

9. Separation of Powers/Application of Kauai County Charter Section 6.02

 

“One of the single biggest changes of the bill between its first reading and its final passage was the reassignment of the responsibilities under the bill from the Department of Public Works to the Office of Economic Development (“OED”). For the reasons state below Council’s unilateral assignment of new functions to OED via the bill without first being recommended by the Mayor appears to violate charter section 6.02 specifically and the legal doctrine of separation of powers in general.” (page 57)

 

 

10. Compliance with Other County Charter requirements

 

Section 4.02(B) of the Charter requires that every ordinance only address “one subject”.  The County Attorney concludes that “it does not appear the the bill is open to . . . objection” on under Section 4.02(B). (page 38)

 

Section 4.02(C) of the Charter states that “no bill shall be so amended as to change its original purpose.”  The County Attorney concludes that the Bill complies with Section 4.02(C) (page 38).

 

 

11. Definitions

 

The County Attorney recommends changing the wording of certain definitions from “Genetically Modified” to “Genetically Engineered.” (page 49)

 

COUNTY ATTORNEY OPINION:  SUMMARY

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