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Eminent Lawyers Question County Attorney Opinion on Bill 2491

Opinion Seen More as “Opposition Statement” used for “Political Cover”



LIHUE - The content of the County Attorney opinion on Bill 2491, and Mayor Bernard Carvalho’s decision to release it, is receiving much criticism and questioning from local and national attorneys. After months of deliberation, Bill 2491 was passed by the Kauai County Council in a 6-1 vote, but vetoed by the Mayor on October 31 and sent back to the Council for an override vote.


Bill 2491 would require pesticide disclosure by the agrochemical companies on Kauai, and establish moderate buffer-zones between their operations and schools, hospitals and residential areas.


County Attorney Opinion Considered a “Position Statement” Written in Opposition to Bill 2491


Highly experienced attorneys are calling the County Attorney opinion both “flawed” and written to advance a “particular agenda.”


Joe Norelli, Kauai resident and attorney who spent his entire career as a government attorney for a federal agency, wrote in a letter to the Mayor titled “County Attorney's Position Statement is a Brief in Opposition to Bill 2491”:


During my career, I have prepared for my superiors and had prepared by my subordinates many legal position papers. The function of such papers is to provide a balanced assessment, pointing out the pros and cons on the legal matter in question, and leaving it to the decision-maker to make the final judgment. The 66-page “confidential” legal position paper you released to the public clearly was intended to advance every conceivable legal argument against Bill 2491, without providing the counter arguments.


Either you requested that it be prepared in that manner or your legal staff did you a grave disservice. In either case, the people of Kauai have been denied a fair assessment of the legal merits of the Bill.


Denise Antolini, Environmental Attorney and University of Hawaii Law Professor, stated that the County Attorney opinion:


“...provides a confusing, overly cramped, and dated view of the legal issues...The Opinion should provide an in-depth analysis of how the Hawai‘i Supreme Court, with its strong legal history in favor of environmental protection, would view the legal issues in the event of a challenge by industry today, given how much more is known now about the risks involved and the increasing recognition of the precautionary principle.  Instead, the Opinion provides excessively long cut-and-paste passages from basic legal treatises and endless citations without analysis or references to current or secondary legal sources on point.”


Attached is a brief synopsis of the County Attorney’s opinion, which has also been posted at:!county-attorney-opinion-summary/c140v



Release of Opinion Criticized as “Self-Interested” and Political Cover


Attorneys have also pointed out that, regardless of content, the Mayor’s release of the opinion was clearly not in the best interest of the County. The Council made the decision not to release the County’s opinion and analysis prior to a potential lawsuit, as will most typically be advised by legal counsel.


Commenting on the Mayor’s decision, Earthjustice Attorney Paul Achitoff told Civil Beat:


It gave him more political cover. But that is self-interested. That is saying, 'I'm putting my own political career ahead of the interest of the county,' which is now in an awkward position because if this veto is overridden and the industry sues you have this document out there that the county now has to deal with in litigation.


Given the Mayor’s duties to protect the County, Joe Norelli said he was “appalled by the process by which this veto was accomplished.”



Concerns Over Impacts and Costs of Lawsuit Exaggerated


Many believe that any legal issues can get worked out before 2491 goes into effect. Elif Beall, a Kauai attorney who has been following Bill 2491 closely explained:


Bill 2491 will not go into effect for 9 months after the Council overrides the veto.  That gives time, if the industry decides to bring a lawsuit, to get a ruling from a court about the legality of 2491’s provisions.  This can all happen before any “damages” are incurred by the companies, and each side would really only be responsible for their legal fees.


Offers of pro-bono legal help from some of the state and nation’s top attorneys will greatly reduce any costs or burden on the County in the event of a lawsuit.


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


Paul Achitoff of Earthjustice and George Kimbrell of The Center for Food Safety, both eminent attorneys on pesticides and genetically modified crops, have also offered in writing to represent pro-bono community groups who would join as interveners in defending the County.


Their official letters were received by the County Attorney’s and the Mayor’s offices, and are available to the public here.



The County’s Kuleana


Attorneys have once again reminded the Mayor and County Council that it is both the County’s right and duty to protect the public from potential harm by the agrochemical companies.


Through the process of considering Bill 2491, state agencies and legislators have testified, revealing a lack of State action to address pesticide issues. The State does not currently have any laws in place like Bill 2491, and has not fulfilled its own legal mandates around pesticide regulation for years.


Further, bill supporters have interpreted the Abercrombie administration’s collusion with the agrochemical companies to push for vague “voluntary action” as an effort to derail Bill 2491 and County-level pesticide regulation. The Abercrombie administration has routinely lobbied against State pesticide laws and has supported proposed legislation to undermine Counties’ rights to protect public health and safety.


Council Chair Jay Furfaro told The Garden Island that despite legal concerns, “the council felt it was our responsibility to take some form of action.”


As was stated in an open-letter signed by nine leading attorneys:


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.


George Kimbrell, senior attorney at the Center for Food Safety, a non-profit specializing in farming and food safety issues, agreed:


Our position at Center for Food Safety - having helped craft and pass numerous county and state laws aimed at regulation of genetically engineered plants - is that the ordinance is plainly lawful and that claims to the contrary are baseless.  The mayor’s decision was a political one, driven by fear of the powerful multinational chemical companies opposed, and not a legal decision.  We urge the Council to override the mayor's veto and effectuate the will of the island’s people.


Denise Antolini expressed the opinion:


In my view, Bill 2491 will ultimately be upheld by the Hawai‘i Supreme Court, where it will most likely be on appeal within one to three years given that industrial agriculture has consistently challenged or tried to end-run similar local-control ordinances nationwide.


In reviewing Bill 2491, I agree with the conclusions of a recent law review article (focused on GMO regulation but equally applicable to pesticide buffer zones), which concluded:  (1) “ Federal law has left the door open for local regulation of GM crops.  Federal preemption is not a huge obstacle for local regulators, nor is the Dormant Commerce Clause.” (2) “If a state grants broad Home Rule authority, either by a constitutional provision or by statute, local authority to regulate GM crops is likely. And with a majority of states adhering to Home Rule, many more communities may join the ranks of local governments asserting their police powers to regulate GM crops.” (Note, As Montville, Maine Goes, So Goes Wolcott, Vermont? A Primer on the Local Regulation of Genetically Modified Crops, XLIII Suffolk Univ. L. Rev. 727, 747 (2010).)


In the absence of state law aimed at addressing these pressing problems, the County should welcome the opportunity for the Hawai‘i courts to review Bill 2491.




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