Rebellion against use of GMOs may compel governor to intervene

Honolulu Star Advertiser - November 21, 2013

By: Derrick DePledge

Gov. Neil Abercrombie will likely face increased pressure for the state to intervene in the debate over genetically modified organisms now that two counties are moving to restrict GMO crops.

The Hawaii County Council on Tuesday voted to approve a bill that would prohibit the expansion of open-air GMO crops on the island. The bill, which now goes to Hawaii County Mayor Billy Kenoi for review, would exempt papaya growers and others who already farm with GMO and would permit experimentation in enclosed areas, such as greenhouses.

On Saturday, the Kauai County Council voted to override Kauai Mayor Bernard Carvalho's veto of a bill that will require greater disclosure of pesticide use by biotechnology companies, create buffer zones to prevent pesticide spraying around schools, hospitals and homes, and study the health and environmental impacts of pesticide use on GMO crops.

"The governor recognizes and respects the passionate views expressed on this subject," Christine Hirasa, an Abercrombie spokeswoman, said in a statement Wednesday. "The administration supports local farmers who are vital to Hawaii's long-term sustainability and is working to expand our agriculture industry.

"Any decisions to impose additional regulations above and beyond those already established by federal regulatory agencies should be based on proven science. The administration will continue to work toward a regulatory structure that protects and balances the needs of farmers, Hawaii's agricultural industry, and the people of Hawaii."

The Abercrombie administration already intervened in the GMO debate on Kauai through an agreement with biotech companies for the voluntary disclosure of restricted-use pesticides and planned setbacks from schools and hospitals.

On Maui, Mayor Alan Arakawa this month signed a memorandum of understanding with Monsanto, the biotech giant, for the voluntary disclosure of restricted-use pesticides on GMO crops on Maui and Molokai and information on the company's stewardship practices to contain dust and prevent soil erosion.

But biotech companies, along with several state lawmakers, will likely press the Abercrombie administration to go further and support the state preemption of county laws. Some lawmakers have reached out to state Attorney General David Louie for a legal opinion about whether Kauai and Hawaii County have improperly trodden into state and federal regulatory territory.

"I'm hoping that the governor will take the lead in this and make it clear that the state has authority to pre-empt these kind of county-led initiatives," said state Sen. Clarence Nishihara (D, Waipahu-Pearl City), the chairman of the Senate Agriculture Committee. "I'm hoping that the governor would set the tone and set the direction for that."

Nishihara said he would likely propose a state preemption bill during the next session in January if Abercrombie does not take the lead.

"We can't have policies on pesticides for one county and the other county with similar companies -- or businesses -- not under the same set of rules," he said.

Mauna Kea Trask, a deputy county attorney on Kauai, had advised Carvalho in October that the courts would likely find that the Kauai pesticide and GMO legislation is pre-empted by both state pesticide law and federal plant protection law.

An attorney for Syngenta, a biotech company with operations on Kauai, warned of a lawsuit immediately after Carvalho's veto was overridden by the council. The Center for Food Safety, a Washington, D.C., advocacy group, and environmental attorneys have volunteered to defend the Kauai law in court.

Alicia Maluafiti, the executive director of the Hawaii Crop Improvement Association, which represents biotech companies, said it is fiscally irresponsible for counties to burden taxpayers with the costs of implementing what she called "duplicitous and irrational laws based on fear."

"While we respect the role of the counties in responding to the concerns of residents and recognize their desire to retain home rule, they are overstepping their kuleana," she said in a statement. "Agriculture and biotechnology are already regulated at the state and federal level and there's good reason for this. They have the resources and technical expertise that the counties do not have to regulate these areas. Furthermore, when legislation or regulation is needed, state and federal law are more effective at creating a fair and uniform regulatory environment, rather than a county-by-county patchwork of conflicting rules."

State Rep. Jessica Wooley (D, Kahaluu-Ahuimanu-Kaneohe), the chairwoman of the House Agriculture Committee, said she would not support state pre-emption unless it was part of a broader agreement with the counties and others on GMO regulation.

"I would not support pre-emption unless we had some significant guarantees in place for all the people who have been so concerned about this issue," she said.

Wooley said the courts will likely decide whether the county laws are legal. State pre-emption, she said, could "really undermine the public's confidence in government. The outpouring of support for this kind of legislation was incredible."

Wooley also said she would again call for the labeling of GMO produce sold in the state. Her GMO labeling bill passed the House last session but did not advance in the Senate.

State Sen. Mike Gabbard (D, Kapolei-Makakilo), the chairman of the Senate Energy and Environment Committee, said he is looking at both GMO labeling and greater disclosure of pesticide use statewide.

"I'm encouraged that lawmakers are finally listening to people's concerns about GMOs," Gabbard said in an email. "I commend the Kauai County Council for taking steps to address health concerns related to the use of pesticides and I also respect Hawaii County Council's right to go with a GMO ban.

"I'm looking at pesticide legislation to add buffer zones and increased pesticide disclosure statewide, but at the same time not pre-empting the counties' ability to act. I'll also be championing a bill to require the labeling of all GMO food sold in the state. People have a right to know what they're eating."

County lawmakers behind the GMO restrictions would also likely fight state pre-emption.

Last session, several county councilmembers complained about a bill that would have prohibited counties from enacting ordinances relating to the protection of health and life, as well as other ordinances that might conflict with the intent of state or federal laws or regulations. The bill passed the Senate but stalled in the House.

Kauai County Councilman Gary Hooser, a former state senator and Abercrombie appointee to the state Office of Environmental Quality Control, said state pre-emption on issues such as pesticide or GMO disclosure is contrary to county home rule.

"Each county has its own identity and its own community, and the governor and the Legislature should honor that," he said.