Judge Overturns Kauai GMO / Pesticide Use Ordinance

Winners: Multibillion Biotech Crop Corporations . . . Losers: Farmers, Consumers, Kauai Residents

The U.S. District Court overturned a Kauai law meant to address concerns about the extensive use of undisclosed pesticides on genetically modified crops. Passed last November, the local ordinance establishes a pesticide buffer zone around neighboring properties and requires biotech companies to disclose data about the chemicals they use and the genetically modified crops they plant.

The back-and-forth volley of the bill highlights its controversial nature. The Kauai County Council passed the measure in October, which the mayor vetoed. The Council overrode the veto in November. Syngenta Seeds, Inc., Syngenta Hawaii, LLC, Pioneer Hi-Bred International Inc., Agrigenetics, Inc., and BASF Plant Science LP filed a lawsuit against the county in January to block implementation and enforcement of the ordinance.

Hawaii’s climate and fertile soil has supported diverse, vibrant farmlands for generations. The archipelago is ideal for growing herbs, spices, avocados, chili peppers, mangoes, macadamia nuts, lychees, pineapples, coffee beans, cacao beans, vanilla beans, papayas and numerous other plants.

Biotech companies on the island of Kauai have replaced many of these traditional crops with genetically modified commodity seeds, mostly corn and soybean. According to a PBS News Hour segment that aired last December, four corporations — Dupont, Syngenta, Dow Chemical and BASF — own or lease almost 20 percent of Kauai’s farming land. The land is used for research into genetically modified seeds that are exported throughout the United States and abroad.

A Food & Water Watch study found that GMO production techniques involve more herbicides and pesticides than traditional farming methods — such as crop rotation — to prevent invasion of pests and weeds. In addition, GMO production practices promote soil erosion and runoff, further exposing surrounding communities to the toxic chemicals through wind drift and drinking water contamination.

Families who live near the biotech operations have experienced higher rates of cancer, asthma and birth defects. Residents believe there may be a link between their illnesses and the pesticides that drift regularly onto their properties and infiltrate their homes, schools, hospitals and businesses. However, Kauai residents and doctors cannot definitely affirm the link because the biotech corporations refuse to disclose the types, levels and incidents of their pesticides use. No doubt, these corporations are concerned that conclusive evidence would expose them to legal liability for the injuries their chemicals caused and force them to stop their profitable operations. So, keeping GMO and pesticide data secret is more important than allowing medical researches and consumers to investigate whether the agricultural practices are safe.

The community of Kauai passed County Code § 22-22 in an effort to obtain the information residents need to protect their health. Predictably, the biggest biotech corporations in Kauai sued the county, alleging state and federal law preempts the local ordinance, the law violates their rights to due process and the burdensome restrictions and penalties effectuate a taking of the corporations’ property. The U.S. District Court Judge agreed with the plaintiffs.

Although a setback for the residents, consumers and farmers of Kauai, the ruling is not affirmation of the plaintiffs’ longstanding position that GMOs and pesticides are safe. Rather, the judge’s decision in the Kauai crop case is based solely on a technical issue, the application of law to the case.

U.S. District Court Judge Barry Kurren makes this point clear when he explains his ruling:

"This decision in no way diminishes the health and environmental concerns of the people of Kauai. The Court's ruling simply recognizes that the State of Hawaii has established a comprehensive framework for addressing the application of restricted use pesticides and the planting of GMO crops, which presently precludes local regulation by the County."

Goliath won this battle, but David may still win the war.

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