The following is Earth Justice attorney Paul Achitoffs testimony addressing all of the legal issues raised by the county attorney and cited in the mayors veto message. If anyone needs it formatted with footnotes send me your email address via PM and Ill send it as an attachment or cut and paste. August 2, 2013 TESTIMONY ON BEHALF OF EARTHJUSTICE IN SUPPORT OF BILL 2491 FROM: PAUL ACHITOFF Aloha Chair Furfaro & Councilmembers: My name is Paul Achitoff, and I am the Managing Attorney of the Hawai‘i office of Earthjustice, a national, non-profit, public interest environmental law firm. I have been in this position for the past twenty years, after a decade in private practice. For the past ten years the focus of my practice has been issues related to genetic engineering. I have litigated several cases in Hawai‘i and nationally concerning genetically engineered (GE) crops, under federal laws directly governing such crops as well as the environmental laws. Earthjustice supports Bill 2491 as offering the residents of Kaua’i much-need protection from the effects of pesticide use and GE crop and seed production. However, my testimony is restricted to addressing legal issues that have been raised by opponents of Bill 2491. Members of the Council understandably will want to consider the risks of a legal challenge to Bill 2491, but will appreciate that the likelihood of a challenge, and the likelihood that a challenge will be successful, are very different things. This proposed ordinance stands on firm legal ground. The failure of competent attorneys offering opposing testimony filled with saber-rattling rhetoric but little legal analysis suggests that industry opponents of Bill 2491 are shooting blanks—they have asked their lawyers to submit opposing testimony, and to try to intimidate the Council, and their lawyers have dutifully said what they can. But they have said little. In any event, opponents of an ordinance will always be free to challenge it, but if the Council fails to take this opportunity to protect the health and welfare of Kaua’i’s residents out of concern that Bill 2491 might be challenged, it is being held hostage by the mere threat of litigation, rather than any well-founded concern that it is acting unlawfully or wasting taxpayer funds on a fruitless exercise that is likely to be thrown out in court. It will be allowing corporate bullying to determine policy and undermine the community’s well-being. The law is not on the pesticide industry’s side (and I include within the pesticide industry the proponents of GE crops, since they are one and the same). Most of these issues are not novel. The pesticide industry has been actively seeking to minimize local regulation for decades, and their arguments are well known, have been the subject of many court cases, and have resulted in much state legislation. Hawai‘i is fortunate in being one of the few states where local pesticide regulation is still available. No Preemption By FIFRA The argument that Bill 2491’s pesticide provisions are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) was decided against the industry over twenty years ago, in Wisconsin Public Intervenor v. Mortier, 501 U.S. 597 (1991). There, a small rural community enacted an ordinance requiring a permit for the application of any pesticide to public lands, to private lands subject to public use, or for the aerial application of any pesticide to private lands. The town was authorized to deny or grant the permit, or add “any reasonable conditions on a permitted application related to the protection of the health, safety and welfare of the residents.” When a permit was granted, or granted with conditions, the ordinance further required the permittee to post placards giving notice of the pesticide use and of any label information prescribing a safe reentry time. One permit applicant was granted a permit that prohibited aerial spraying and restricted the lands on which ground spraying would be allowed. He challenged the ordinance as preempted by FIFRA, among other arguments. Then-Attorney General Warren Price, III submitted a brief on behalf of the State of Hawai‘i as amicus curiae forcefully arguing that FIFRA did not preempt the ordinance. The United States Supreme Court agreed. It explained that preemption may be expressed by the terms of the federal statute, implied by the federal regulatory scheme occupying the field and leaving no room for local regulation, or by the existence of an actual conflict with the provisions or intent of the federal statute. The Court found none of these in FIFRA. With respect to implied preemption resulting from FIFRA being a comprehensive law occupying the field, the Court noted, with particular relevance to the situation here: FIFRA nowhere seeks to establish an affirmative permit scheme for the actual use of pesticides. It certainly does not equate registration and labeling requirements with a general approval to apply pesticides throughout the Nation without regard to regional and local factors like climate, population, geography, and water supply. Whatever else FIFRA may supplant, it does not occupy the field of pesticide regulation in general or the area of local use permitting in particular. Id. at 613-14 (emphasis added). The Court also found: “FIFRA provides even less indication that local ordinances must yield to statutory purposes of promoting technical expertise or maintaining unfettered interstate commerce.” Id. at 615-16. No Preemption By H.R.S. ch. 149A The Supreme Court’s reasoning in Mortier also sheds light on another argument industry opponents have made here: that Bill 2491is preempted by Hawai‘i’s pesticide law, HRS ch. 149A. The law governing whether Hawai‘i State law preempts a county ordinance is similar to the U.S. Supreme Court’s analysis in Mortier, and was described in Richardson v. City & County of Honolulu, 76 Hawai‘i 46, 868 P.2d 1193 (1994). The Richardson Court explained: “[A] municipal ordinance may be preempted ... if (1) it covers the same subject matter embraced within a comprehensive state statutory scheme disclosing an express or implied intent to be exclusive and uniform throughout the state or (2) it conflicts with state law.” (emphasis added) (interpreting H.R.S. § 46-1.5(13)). The legislature must intend a state statute to be exclusive, not merely uniform. Pacific Intern. Services Corp. v. Hurip, 76 Hawaii 209, 873 P.2d 88 (1994). Section 46-1.5(13) expressly reserves the Council’s authority to enact any ordinance that does not run afoul of these principles. As a matter of law, the conclusion that the Hawai‘i Legislature intended preemption is disfavored, and a party that would benefit from preemption has the “considerable burden” of showing that preemption was intended. Reel Hooker Sportfishing, Inc. v. State, Dept. of Taxation, 123 Hawai’i 494, 236 P.3d 1230 (Hawai’i App. 2010). Bill 2491 and ch. 149A both cover pesticides, but preemption requires much more than that. The question isn’t whether State intended to allow county regulation, but whether it intended to prohibit it. First, there plainly is no express preemption of county ordinances found in ch. 149A. In response to the Mortier case, the pesticide lobby urged states to pass legislation expressly preempting local ordinances (such as by pushing a model pesticide preemption bill drafted by the American Legislative Exchange Council (ALEC), funded by corporations and Koch Brothers). Some forty-one states have enacted provisions that do preempt local pesticide regulation. For example, Oregon’s law provides: § 634.057 State preemption of local pesticide regulation No city, town, county or other political subdivision of this state shall adopt or enforce any ordinance, rule or regulation regarding pesticide sale or use, including but not limited to: (1) Labeling; (2) Registration; (3) Notification of use; (4) Advertising and marketing; (5) Distribution; (6) Applicator training and certification; (7) Licensing; (8) Transportation; (9) Packaging; (10) Storage; (11) Disclosure of confidential information; or (12) Product composition. Hawai‘i (along with Alaska, Maine, Maryland, Nevada, South Dakota, Utah, Vermont, Wyoming and the District of Columbia) has not adopted such legislation. Opponents of Bill 2491 now seek to gain the benefits of such express preemption legislation without our Hawai‘i State Legislature actually having enacted it, simply by having their lawyers argue that it somehow already exists. It does not. Second, just as the U.S. Supreme Court in Mortier pointed out in concluding that FIFRA does not impliedly preempt local pesticide regulation, that “FIFRA nowhere seeks to establish an affirmative permit scheme for the actual use of pesticides” and therefore “does not occupy the field of pesticide regulation in general or the area of local use permitting,” ch. 149A does not occupy the field, and does not address areas that Bill 2491addresses, leaving the field open for local regulation. In fact, ch. 149A follows a regulatory scheme very similar to FIFRA, which the Supreme Court has already declared non-preemptive. While ch. 149A may appear comprehensive in the abstract, it is considerably less comprehensive than statutes of other states. Ch. 149A is directed towards distribution, sale and transport of pesticides. Nothing in the language of the statute or its legislative history discloses an intent to occupy the field, or make ch. 149A govern pesticide use exclusively. Nor does Bill 2491 “prohibit what the statute permits or permit what the statute prohibits.” Waikiki Resort Hotel, Inc. v. City & Cnty. of Honolulu, 63 Haw. 222, 241, 624 P.2d 1353, 1366 (1981). Regarding disclosure and notification, for example, ch. 149A contains no conflicting requirements, let alone express preemption of such provisions—unlike, for example, Colorado’s statute, which provides: No county, city and county, municipality, home rule county, home rule city and county, or home rule municipality shall enact or impose any notification requirements upon commercial applicators which are more stringent than those imposed by this article; except that each county, city and county, municipality, home rule county, home rule city and county, and home rule municipality shall retain the authority to impose any notification requirements upon private individuals, property owners, and the general public. C.R.S. 35-10-112(3). If Hawai‘i ’s legislature had wanted to enact such a provision, it could have. I didn’t. Ch. 149A says nothing like this, nor does it contain comprehensive disclosure requirements or other provisions implying that a pesticide user is entitled to keep secret the identity of the pesticides it uses, or the locations where it uses them, such that they might impliedly preempt, or conflict with, Bill 2491’s disclosure and notification requirements. The fields of notification and disclosure are open for this Council to fill to protect its residents. Ch. 149A contains no provisions providing or implying that a pesticide applicator is entitled to apply pesticides wherever he pleases, such as near schools, hospitals, residential areas, public roadways, streams, rivers, or shorelines, as long as the pesticide label does not expressly prohibit it, such that Bill 2491’s buffer zone provisions might be deemed preempted. While some state statutes contain specific buffer zone provisions, ch. 149A contains none. The field remains open for county regulation. Pursuant to these principles, several municipalities recently have enacted ordinances restricting use of pesticides. For example, the Takoma Park, Maryland City Council on July 22, 2013 unanimously passed the Safe Grow Act of 2013, which generally restricts the use of cosmetic lawn pesticides on both private and public property throughout the Maryland city.1 Washington, D.C. enacted the Pesticide Education and Control Amendment Act of 2012, which offers protections from restricted use pesticides on public property near waterways, schools, daycare centers and city-owned property.2 This Council thus will not be alone in using its authority to protect Kaua’i and its residents by enacting Bill 2491. No Preemption By Hawai‘i’s Right to Farm Act Some have argued that Bill 2491 is preempted by ch. 165, the Hawai‘i Right to Farm Act. The plain language of ch. 165, combined with a review of the legislative history, demonstrates conclusively that this argument is misplaced, and ch. 165 does not preempt Bill 2491. Section 165-1 explains that the law is intended to address “nuisance lawsuits.” Section 165-4 by its terms applies only to declarations by a “court, official, public servant, or public employee” that a farming activity is a “nuisance,” as defined in the Act. It says nothing about county councils or other legislators enacting laws. The Act further defines “nuisance” as including “all claims that meet the requirements of this definition….” In fact, H.R.S. § 46-17 expressly allows counties to enact ordinances regulating or prohibiting “dust” among other things, regardless of any other law, including ch. 165. Section 46-17(1) carves out a specific exception to the counties’ authority with regard to permitted agricultural burning. If ch. 165 already disallowed any county ordinance restricting agricultural operations that may be deemed a nuisance, such an exception would be superfluous, and the law disfavors interpreting statutes so as to make provisions superfluous. Were there any ambiguity that ch. 165 applies to nuisance lawsuits rather than ordinances, the Senate Committee Report underlying the law’s enactment clearly explains this limited intent: SCRep. 132-82 Agriculture on H.B. No. 2377-82 The purpose of this bill is to protect agricultural operations from lawsuits charging that the operation is a nuisance. This bill limits the circumstances under which an agricultural operation may be considered a nuisance. This bill provides that an agricultural operation may not be deemed to be a nuisance if the operation has been in existence for one year or more prior to the lawsuit and where the conditions constituting the basis for the nuisance complaint have existed substantially unchanged since the agricultural operation began or prior to any changed conditions in or around the locality of such agricultural operations. Your Committee finds that such nuisance lawsuits are expensive and time consuming to defend and are a great source of frustration and aggravation to the farmer. Your Committee also finds that continued encroachment into agricultural areas for housing purposes are resulting in increasing nuisance complaints regarding existing farming practices. In an effort to reduce the loss of agricultural resources, including time and money, resulting from these nuisance lawsuits, this bill would protect legitimate agricultural operations against nuisance lawsuits under limited circumstances. No Preemption By Laws Concerning Genetic Engineering Bill 2491 requires disclosure of use of GE crops, a temporary moratorium on their new or expanded production while grandfathering existing uses, creation of permit system allowing use of GE crops while preventing contamination, and a prohibition on open-air testing of experimental GE crops. It would be extremely difficult to argue that federal or state law governing GE crops expressly or impliedly preempts Bill 2491. Hawai‘i State law on the subject is essentially nonexistent. Federal law contains no express preemption provisions. Nor is there any federal regulatory scheme that could conceivably be deemed so comprehensive as to suggest an intent to occupy the field and impliedly preempt state or local law. Congress has enacted virtually no federal law specifically to govern GE crops and other organisms, but rather has allowed several different federal agencies to rely on a patchwork of pre-existing laws that were never designed to address the novel risks GE organisms present. The lack of a comprehensive federal regulatory scheme is notorious and acknowledged by all sides and interests. Several counties and municipalities, in Hawai‘i and elsewhere, have already enacted GE moratoria or outright bans. In addition to Hawai‘i County’s and Maui’s GE taro bans and Hawai‘i County’s GE coffee ban, Mendocino County in California banned GE crops almost a decade ago, followed by Marin, Trinity, and Santa Cruz counties and the cities of Arcata and Point Arena, California. Montville, Maine; Boulder, Colorado (on public land); and San Juan County, Washington all prohibit growing GE crops. No such ban has been overturned in court, on any ground. Bill 2491’s moratorium does not go as far as these measures, since it allows existing production, enclosed experimental testing, and eventual permitted production subject to reasonable conditions designed to prevent harm to others. No Dormant Commerce Clause Concern The argument that Bill 2491 violates the Dormant Commerce Clause because it might reduce the extent of interstate commerce of GE companies doing business on Kaua’i lacks merit. It requires far more than a showing (let alone unsupported rhetoric) that an ordinance may harm a company’s interstate business to make a law unconstitutional. The U.S. Constitution reserves for the United States Congress at least some degree of exclusive power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” (Article I, § 8). Therefore, individual states and counties are limited in their ability to legislate on such matters. The so-called “Dormant Commerce Clause” is a judicially-created doctrine that says that this grant of power implies a restriction prohibiting a state or county from passing legislation that improperly burdens or discriminates against interstate commerce. The central rationale for the doctrine is to prohibit state or municipal laws whose object is local economic protectionism, by favoring in-state economic interests over out-of-state interests. The burden to prove discrimination “rests on the party challenging the validity of the statute.” Hughes v. Oklahoma, 441 U.S. 322, 336 (1979). Where a law is directed to legitimate local concerns, particularly health and safety concerns within the traditional scope of local police power, with effects upon interstate commerce that are only incidental, that burden is great, and is unlikely to be met with Bill 2491. In Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981), for example, the Supreme Court upheld a state law that banned nonreturnable milk containers made of plastic, but permitted other nonreturnable milk containers. The Court found that the existence of a burden on out-of-state plastic industry was not ‘clearly excessive’ in comparison to the state’s interest in promoting conservation. In Exxon Corp. v. Maryland, 437 U.S. 117 (1978), the Court upheld Maryland’s law barring producers of petroleum products from operating retail service stations in the state, noting: “The fact that the burden of a state regulation falls on some interstate companies does not, by itself establish a claim of discrimination against interstate commerce.” The “Clause protects interstate market, not particular interstate firms, from prohibitive or burdensome regulations.” Bill 2491 Will Not Result in Takings Arguing that an ordinance will constitute a “taking” is a routine business tactic designed to intimidate, but there is no meaningful support for it in this situation. Use of the police power to protect public health, safety, and welfare to take private property without compensation is limited by the Fifth Amendment to the United States Constitution, and extends to the states under the Due Process Clause of the Fourteenth Amendment. Some overly-restrictive land use regulations can constitute a taking. For example, where a regulation authorizes a “physical invasion” of private property, it can effect a taking. Short of physical invasion, a regulation restricting the use of property to further legitimate public ends generally will not be considered a taking merely because it impairs the value or utility of that land. Where a regulation merely prohibits the most beneficial use of land it will generally be upheld. A regulation constitutes a taking only if it goes “too far,” such as when the regulation denies all economic use of the land, or when it unjustly forces some people alone to bear public burdens that should be borne by the public as a whole. A regulation does not, however, go “too far” so as to require compensation for a taking when it merely decreases property value or prevents property owners from doing exactly what they want with their property. As long as a regulation allows property to be put to productive economic use, the property has value and the regulation will not be deemed to deny all reasonable economic use of the property; there is no regulatory taking in that situation. Property owners do not have a constitutional right to the most profitable use of their property. There exists no bright-line test for how far is “too far.” Courts determine the constitutionality of uncompensated restrictions on land use that do not go so far as to eliminate all economic use on a case by case, fact-specific basis, and will generally consider the magnitude of the economic impact, how severely the regulation affects “investment- backed expectations,” and the character of the government action. Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538-39 (2005). Compensation is un likely to be required when property rights are compromised when, as in Bill 2491, a restriction is intended to prevent potential harm; there is no property right to use land in a way that harms others, even if that use maximizes the particular site’s economic potential. There is no constitutional or legal right to a particular return on investment. It would be unlikely for reasonable limits on land use, such as restricting pesticide application in riparian buffer areas along streams, to be deemed a “taking” under the United States or Hawai‘i Constitutions. Courts have consistently upheld such regulations in the face of takings challenges. Takings concerns are virtually nonexistent where, as here, the buffer regulation remains rationally related to legitimate police powers, draws upon existing science regarding the benefits of buffers, and allows for reasonable non-intrusive uses within buffer areas. Even where an ordinance eliminates all economically viable use of land, but for only a limited period, such as some might argue will occur during Bill 2491’s moratorium on additional GE production during preparation of an Environmental Impact Statement and development of a permitting system, a taking will not necessarily be effected. In Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002), the Supreme Court held that a moratorium on all development for 32 months during the process of devising a comprehensive land-use plan did not necessarily constitute a taking; a fact-specific inquiry and balancing is necessary. Bill 2491’s grandfathering of existing production and the moratorium’s purpose of allowing comprehensive planning, combined with the ordinance’s health and safety purpose, make a takings conclusion unlikely. EPA Does Not Protect The Public From Pesticide Drift To the extent that some argue that Bill 2491’s buffer zone provisions are unnecessary because they assume the Environmental Protection Agency is adequately addressing the problem, they assume wrong. In 1993, the National Academy of Sciences (“NAS”) released a pivotal study on the heightened vulnerabilities of children to pesticides. The study criticized EPA for failing to address their unique susceptibility to pesticides and their exposures. Congress heeded the NAS recommendations and unanimously passed the Food Quality Protection Act in 1996, which required that EPA, by August 2006, revise their regulations to ensure that children are unharmed by aggregate exposures to pesticides, including from drift. EPA failed to assess children’s exposures to pesticides that drift from agricultural sites to homes, schools, daycares, parks, and other places where children may be exposed. In October 2009, Earthjustice, on behalf of a coalition of citizen groups, petitioned EPA to comply with its legal obligation by assessing risks to children from drift, restricting pesticide uses accordingly, and creating buffer zones around schools, etc., to minimize drift exposure. Four years later, EPA has continued to ignore the petition, and has failed to take the actions requested or otherwise protect children from pesticide drift. On July 24, 2013, Earthjustice challenged EPA’s inaction in the Ninth Circuit Court of Appeals to compel EPA to respond to the petition and comply with its legal obligations.3 Plainly, opponents of Bill 2491 cannot credibly argue that EPA’s regulations and actions make Bill 2491’s protections unnecessary. Thank you for the opportunity to testify.
Posted on: Fri, 01 Nov 2013 20:38:20 +0000