IGNITING OUR VOICES
PESTICIDES ON THE NORTH SHORE
Story by: Alden Alayvilla
CHAPTER 3
REGULATING PESTICIDES
IN HAWAII:
Whose job is it, anyway?
Story by: Janelle Guerrero-Miguel
County councils throughout Hawai’i and the state government regulators are having trouble deciding who’s responsible for authorizing regulations regarding pesticide use and disclosure information.
However, the Hawai‘i State legislature, through Chapter
149A of the Hawai‘i Revised Statutes, gives HDOA the
authority to regulate pesticide use.
“The state sets the minimum laws regarding agricultural uses, but the counties are supposed to administer them,” said David Callies, a Professor at the Richardson School of Law at the University of Hawai’i. “This is confusing because the county doesn’t have any say in what those regulations are on the state level.”
David Callies
As pesticide use has increased, only Kaua‘i County attempted to regulate pesticide use by way of sections 22-23 et seq. of the Kaua‘i County Code. Maui County, through ballot initiative, and Hawai‘i County, through sections 14-128 et seq. of the Hawai‘i County Code, unsuccessfully sought to regulate genetically modified crops, not pesticides, according to the DHOA.
In response, some agriculture companies have sued these county governments, claiming that they don’t have the authority to regulate them.
In a case challenging the County of Kaua‘i’s disclosure-mandating Bill 2491, for instance, companies including Agrigenetics, DuPont Pioneer, and Syngenta filed a complaint in the U.S. District Court of Honolulu, arguing the county couldn’t regulate them, according to an article from Agri-Pulse.
Such action on the county level has led to a broader legal controversy over whether the counties or the state have the authority to regulate pesticide use. While the legality of county laws is playing out in the courts, some in Hawaii’s legislature have tried to preserve power at the state level.
OPPOSING VIEWS
Chief among those efforts was HB 2506, also known as an extension of the “Right to Farm” Act. The act’s purpose was to ensure that counties cannot enact laws, ordinances, or resolutions that limit the rights of farmers and ranchers in their respective agricultural practices.
This right-to-farm bill was introduced by Rep. Dee Morikawa (D-Koloa-Niihau) and Rep. James “Jimmy” Tokioka (D-Koloa-Wailua). It was supposed to expand on the state’s Right to Farm Act of 2001 (HB 849).
The bill failed to pass the legislature in the most recent session, but the 2001 law still obligates farmers to “operate in a legal and reasonable manner to be eligible for the law's protection and must follow best management practices.”
The law also says that “this policy sets forth the State's responsibility to oversee and implement laws and rules to guide the success and development of Hawaii's agricultural community. No county charter appropriately provides a county role in regulating agriculture, nor does any county government dedicate a department with financial resources and qualified agricultural and scientific professionals necessary to fulfill that role.”
That existing law has been buttressed by recent court decisions. In September 2014, a U.S. Magistrate Judge ruled in Syngenta Seeds Inc. v. County of Kauai, the case deciding the legality of the county’s pesticide disclosure ordinance, that the state has sole authority over pesticide regulation.The Center for Food Safety, which an anti-pesticide group, disagrees.
"We think it's the duty of the county to protect the health and well-being and safety of it's people," Ashley Lukens, the Director of Food Center for Safety Hawai’i, said.
Ashley Lukens
But the state constitution gives the state broad authority to regulate agriculture policies. Article XI, section three of the Hawai’i State Constitution states that “The State shall conserve and protect agricultural lands, promote diversified agriculture, increase agricultural self-sufficiency and assure the availability of agriculturally suitable lands.”
County charters, meanwhile, contain no such broad provisions.
A CAUSE FOR CONCERN
The Kaua’i County Council passed Bill 2491, which requires companies who purchase more than five gallons, or 15 pounds, of pesticides a year to observe buffer zones, disclose the type of chemicals in the pesticides that they’re spraying and to notify nearby residents when they’re spraying these pesticides.
“On the island of Hawai’i, their county council actually said, ‘we want to place a ban on all future GE crops on our island because there are no large-scale agri-chemicals operating there,” Lukens said.
“And on the island of Maui, the community passed a ballot initiative that said chemical companies had to suspend their agricultural operations until they proved to the community that it was not having an adverse health or environmental impact.”
Rural communities are more exposed to pesticide use because a lot of the chemicals that these companies use are banned in urban areas, meaning that Honolulu is safer from pesticide drift than other places on neighbor islands. This raises concerns of citizens who live in rural communities because companies are coming in and engaging in a form of agriculture that isn’t appropriately monitored by the state.
For example, Waialua High School shares a fence line with DuPont Pioneer. While Hōʻā was not able to obtain data about how often DuPont Pioneer uses pesticides on their Waialua property, Lukens said records from a property on Kauaʻi show that chemical company sprays two out of every three days of the week up to 16 times a day.
A previous version of this article stated that “County councils throughout Hawai‘i and the state government regulators are having trouble deciding who’s responsible for authorizing regulations regarding pesticide use and disclosure information.”
Additionally, that “Three out of four counties -- Kaua‘i, Maui, and Hawai‘i – have tried to regulate the industry ways, including mandating that companies disclose which pesticides they are using.”
Read original article here: http://www.hoaoahu.com/#!chapter3/zlm4f.
“Can you imagine, you’re a parent and you’re sending your kid to that school? Don’t you want to get a little more information of what could potentially be in the air? So I think people have a right to be concerned -- a reason to be concerned,” Lukens said.
