Attorneys' Legal Statement
The Kaua’i County Council will soon vote on an amended Bill 2491, requiring disclosure by the major users of restricted, experimental and general use pesticides, create pesticide buffer zones around schools and waterways and study the health, environmental and socioeconomic impacts of the widespread use of these pesticides and the production of experimental genetically engineered plants. The original version also sought to freeze the status quo concerning such production—halt its expansion—while that study is being conducted. The Council has received a great deal of testimony from the general public and from individuals and experts in relevant fields in an admirable effort to make a deliberate, well-informed decision.
It is the responsibility of Council Members to decide whether or not Bill 2491 represents good and necessary public policy. But there’s been much debate about whether Bill 2491 is legally sound, regardless of how necessary it might be. Industry opponents have threatened litigation, and some Council Members have made concerns about the bill’s lawfulness the cornerstone of public statements on how they may vote.
No thoughtful, experienced attorney will offer blanket assurances about how any lawsuit will be decided, and the bill presents some cutting-edge legal issues. But the State expressly granted the County the authority to protect the health, life, and property of its people from just these kinds of threats. No law expressly prohibits the County from taking this action, and no court cases clearly block the County from passing and implementing this Bill. Moreover, ordinances with similar provisions have been passed elsewhere and have not been successfully challenged.
We believe that Bill 2491 is sound, and the mere threat of a lawsuit by industry interests should not prevent the Council from taking action they believe is important to their community. Attorneys experienced in these issues have given the Council volumes of detailed legal analysis supporting the bill’s legality, discussed these issues with the Council, and made their analyses publicly available for critique. Yet Bill 2491’s opponents haven’t supported their campaign of intimidation with any legal explanations.
We feel it would be unfortunate if the Council were to allow any well-financed opponent to determine public policy merely by threatening to sue. But if a vote is being based on the belief that the Bill will be struck down, we see no meaningful basis for that concern.
Paul Achitoff - Managing Attorney, EarthJustice
George Kimbrell - Senior Attorney, Center For Food Safety
Peter Schey - President/Attorney, Center for Human Rights and Constitutional Law
Justice Steven Levinson (Retired - Hawaii Supreme Court)
Alan Murakami - Attorney (personal capacity)
Teresa Tico - Attorney and former President Kauai Bar Association
Kapua Sproat - Attorney and Law Professor, Richardson School of Law
Harold Bronstein - Attorney, Kauai
Elif Beall - Attorney, Kauai
"We feel it would be unfortunate if the Council were to allow any well-financed opponent to determine public policy merely by threatening to sue. But if a vote is being based on the belief that the Bill will be struck down, we see no meaningful basis for that concern."