With Aloha Comes Kuleana - Bill 2491 Will Withstand Legal Challenge

With aloha comes kuleana. 

Many in our County believe their aloha, their health, their natural environment and their families are being threatened by the toxic pesticides used on our island by the large agrochemical corporations. 

Residents of our community are willing to sleep over night on the cold hard cement in front of the historic county building for their right to protect their island and its people.  Recently, 4,000 Kauai residents including doctors, teachers, hotel workers, nurses, business owners, students, farmers and families marched with aloha to show their love of the aina and to protect that which they love.

Numerous medical professionals who work in our hospitals, who deliver our babies and who treat our kupuna are telling us that they have serious concerns with regards to the relationship between heavy pesticide use adjacent to their communities and the health of their patients.

Many of these community members have told me this issue is not going away, and neither are they, until our local government puts some protections in place.  Many have told me that the public process of vetting 2491 has uncovered the appalling lack of will at the state level to protect citizens and the environment from the dangers of pesticides.  They tell me they are counting on the County Council.

Our Mayor recently vetoed Bill 2491 saying he supports the intent but is concerned with the potential legal challenges.  Apparently, he believes the perceived legal concerns exceed in importance the health concerns and that the companies will somehow soon be convinced to voluntarily provide the disclosure and buffer zone requirements contained within Bill 2491.

The largest of these companies have already threatened our community with court action and now the Mayor, apparently upon the advice of the County Attorney has turned over to them all of the County’s legal research and rationale.  Any second year law student can tell you that recommending your client turn over their entire legal reasoning and strategy to the opposing lawyer who has already promised to take you to court – could in fact cost you your license to practice law.

All members of the Council are and have been aware of the legal issues but yet we voted 6 to 1 in support of passing Bill 2491.   I voted yes because I believe, based on the testimony from credible physicians, nurses, teachers and scientists that harm is now occurring and it is our kuleana, our duty and our responsibility to take action to prevent that harm.

The Mayor’s new managing director former Councilmember Nadine Nakamura helped craft the final amendments to Bill 2491 and voted in support of passing the Bill.  The Mayor is basing his veto decision in part on legal concerns of those very same amendments Ms Nakamura shepherded through the process.  The County Attorney who is advising the Mayor as to the legal issues was present in the room during the discussion of those amendments and while the vote was being taken.

Numerous highly qualified legal authorities have publicly attested to the legal strength of the Bill and several have stepped forward to defend the Bill and the County at no cost, including the preeminent legal authorities in the nation specializing in the issues of pesticides and genetically modified organisms. 

Local attorney and former head of the Kauai Bar Association Teresa Tico and nationally known attorney and head of the Center for Human Rights and Constitutional Law Peter Schey have both agreed in writing to defend the County of Kauai pro bono should Bill 2491 be challenged in court.

In addition, Paul Achitoff of Earth Justice and George Kimbrell of The Center for Food Safety have also offered in writing their pro bono representation of community groups who would join as interveners in defending the County position.

Finally as even further legal protection: The Bill as written does not take effect for 9 months (as suggested by the Mayor’s new managing director). This provides 9 months to deal with any legal issues without any significant costs incurring. Meaning, once the veto is overridden, if the agrochemical companies sue, there is time for a court to rule on the validity of the law, and time to amend and strengthen the Bill accordingly.  All before the disclosure and buffer zones go into effect. 

Given the totality of the situation, passing Bill 2491 now is the responsible action to take.  We have taken prudent steps to cover our legal bases and now we must exercise our kuleana to protect the health and welfare of our community. 

Imua.  Let’s pass the Bill.

Note: There will be a meeting at the Kauai County Council on November 7 at 9am when the veto of Bill 2491 will be “put on the table” of the Council.  No Council action will be taken on this day -- however public testimony will be permitted.  Then a subsequent meeting to consider whether to accept or override the mayor's veto will be scheduled.