Judge rules Kauaʻi pesticide law is pre-empted by state law

Judge Barry M. Kurren handed down a ruling today in the lawsuit brought by four chemical companies against the County of Kauaʻi to block implementation of Ordinance 960 (previously Bill 2491). Kurren ruled that Ordinance 960 is pre-empted by the state, prompting outrage from some Kauaʻi residents. An appeal of the ruling is likely. 

“It’s discouraging to witness the injustices and inadequacies of the American legal system, which in this case has valued and protected corporate profit and trade secrets over people’s simple, basic human right to know what toxic chemicals they are being exposed to in excessive amounts almost daily,” said West Kaua‘i resident Malia Chun.

Recent revelations that pesticide use by the chemical companies on Kaua‘i is some of the highest in the nation has further reinforced the call for disclosure laws and buffer zones on the island.

“The failures of the State to protect health and [the] environment were made abundantly clear in deliberations over Kaua‘i’s Bill 2491 (partly summarized in this article), and residents are infuriated by the blatancy of injustice,” reads a press release sent out by The Hawaiʻi Alliance for Progressive Action (HAPA).

Since the passage of Ordinance 960 last November, several new studies have linked diseases with pesticides use.

“The chemical companies must be held accountable to our people and our land,” said food and social justice activist Andrea Brower after the ruling. “Movements for social justice, the environment and democracy are never straightforward and never easy, especially when they confront such powerful interests. But people on Kaua‘i are determined in their love for the ‘aina and one another, and committed to what is pono. That cannot be exterminated by a lawsuit. As the absurdity of injustice and the need for deep systemic change is revealed, movements only build in strength.”

Earthjustice attorney Paul Achitoff said, “This battle to protect Kaua‘i and its residents from the effects of toxic pesticides is only just the beginning. We do not accept that people must put up with toxic chemicals being sprayed near their homes and schools, and will keep fighting for their right to protect themselves.” Earthjustice, a public interest legal nonprofit in Honolulu, along with the Center for Food Safety, are representing a group of Kauaʻi individuals and nonprofits that have a stake in protecting Ordinance 960 from legal attack. 

“This issue is not going away. Wherever the battle is, the people will be there,” agreed Kaua‘i County Councilmember and president of HAPA Gary Hooser. “If it’s at the state legislature, we will be there. If it’s in a court of appeal, we will be there. The people of Hawai‘i have learned too much to go backwards. We’ve learned about the high levels of pesticides these companies are using. We’ve seen the lengths they are willing to go to for the ability to spray pesticides near our homes and schools. We know that truth and fairness are on our side. We will not go away until we win and until our families and natural resources are protected.”

The lawsuit has cost the County only a small fraction of what is spent in defense from personal suits. “The health and safety of Kauai’s people should be our primary concern,” said Isobel Storch, a farmer on Kaua‘i and former municipal attorney. “If the County isn’t willing to respond to industry lawsuits then we will have only laws that are acceptable to the chemical industry. That is clearly unacceptable.”

Judge Kurren also ruled that Ordinance 960 is not pre-empted by federal law, however. Ordinance 960 creates buffer zones around sensitive areas such as homes, schools, hospitals and streams, and requires disclosure of pesticide spraying.