A Progressive Agenda and More

Too often we are tasked on election day to choose between the lesser of two evils.  I believe early on, before we get to that point, we should strive to find and elect those people that actually meet our highest standards.

This begs the question: So, what might that look like?

Character, track record and platform are primary factors in the decision making.  What are the basic and essential character traits necessary for me to support a candidate?  Does their “issue platform” align with my own core values and world view?  Is the candidate’s history and track record one that reinforces those same essential character traits and core values?

For me, the number-one character trait that applies to all candidates, at all levels of government and regardless of ideology, is honesty.  Will they rob from the public till, steer contracts to their friends and campaign donors, or otherwise abuse the public trust?

Next comes transparency, openness and responsiveness.  Is the person more comfortable making decisions in the back room, or are they willing to work in the bright but sometimes harsh sunshine of public scrutiny?

Will they primarily listen to those friends and institutions who have the inside track via campaign support, or with whom they have prior business relationships?  Will the key jobs and appointments to boards and commissions be awarded on the basis of friendships and obligations, or based on experience, skill sets and competence?

Will they be an advocate and actively champion the policies and actions needed to move Hawaii forward?  Or will they be passive in their policy agenda, preferring to simply await the decisions and actions of the legislature?

Are they willing to challenge the status quo and the institutions that control land and power in Hawaii?

Do they possess the courage and political will to require those in positions of wealth and influence (big business and the very wealthy), to help pay for the many needs of the other 95% of the population?

Do they seek creative solutions to the challenges? Or is their default position “We can’t do that.”

Are they able to articulate a vision that inspires the community at large?  Do they have the ability to manage, motivate, or at the minimum garner the trust of State employees and their representatives?

In addition to these basic character traits, they must espouse a platform of values that to a great extent, mirror what most would consider a solid progressive agenda.

They must support equality for all people.  They must support the full funding needed to place a highly qualified teacher in every public school classroom. They must support an aggressive effort to increase truly affordable housing, a minimum wage in Hawaii of at least $15 per hour, and the right for workers to organize into unions. They must support a woman’s right to choose. They must recognize the threat of climate change and make carbon-generating businesses pay their fair share. They must oppose the further privatization of our prison system.  They must believe and support a progressive tax system where those who have more, pay more. They must aggressively pursue environmental protection ahead of corporate profits. They must support increasing regulations of industrial scale pesticide use. And of course, they must oppose the statements, actions and policies of Trump that threaten all of the preceding.

A tall order? Perhaps. But this is the basic criteria upon which I believe we should evaluate all candidates for State office.

For me to be willing to carry a flag of support up the hill for any candidate, to campaign for them, to tell my friends to vote for them, or to even put a bumper sticker on my car for them – they have to be able to fill that order, tall as it might appear to be.

At the end of the day, I may indeed vote for someone as the “lesser of evils,” who is not my ideal choice but better than the other candidate.  Until that time, however, my hope is that the candidates now running will consider these issues as their priorities as well, and/or other candidates who better represent the characteristics and values that I hold dear, will soon step up.

Note: First published on 12/06/2017 in The Garden Island newspaper “Hooser – Policy & Politics”

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Essential Reading: For medical professionals and others serious about understanding the Kauai pesticide/birth defect situation

Below is a comment pulled from The Garden Island comment section, that was attached to the “Pesticides and Birth Defects – Who do you believe?” story published on 11/29/2017 (and republished on this blog, below this blog piece).

This is important to read if you are seriously interested in this topic.  The State Department of Health (SDOH) has struggled with updating the Hawaii Birth Defect registry and the most recently posted report is dated 2005.

The SDOH continues to insist that “there is no problem” as to increased incidence of birth defects on Kauai, even though several local physicians based in the main hospital that serves the community most impacted by high levels of pesticide applications in the nearby fields, – continue to believe there is a problem.  Dr. Raelson explains below the source of his concerns regarding the reliance on the SDOH data.  Here is a link to his original email explaining how he and colleagues came to the conclusion that the Kauai Veterans Memorial Hospital (KVMH) appeared to have 10X the national rate of certain rare heart defects in new borns.  https://tinyurl.com/y7djq7t2

Jim Raelson November 29, 2017 11:08 pm

Reply

I am one of the physicians that Mr. Hooser refers to above and in fact am responsible for raising the concern re: a cluster of certain birth defects on the Westside. The Joint Fact Finding Study released May/2016 does an excellent job of summarizing what we know and don’t know and should be read carefully by those expressing opinions. In regards to birth defects and neurodevelopment problems on the Westside the study clearly and carefully states that there is not accurate data to answer the question. The claim by Uncleania and others that the data show no evidence of increased incidence of birth defects or health problems is just not true. The Joint Fact Finding Study made specific recommendations re: getting accurate birth defects information. DOH and Dr. Pressler have made efforts since then to improve birth defects data gathering but still have not conducted the type investigation that would be required. The problem is with case ascertainment. HBDP and DOH data relies on ICD9/10 case identification primarily. There are multiple problems with this approach which I have raised with the Fact Finding Group:

1. There are multiple different EHR systems in hospitals, clinics and private physician offices that don’t interchange data and many DOH does not have access to. 2. ICD9/10 coding is driven by billing concerns not epidemiology needs and as such accurate coding of birth defects does not exist; coding at one hospital in question is not even done by physicians or clinicians but by billing clerks. 3. Many birth defects are not diagnosed at birth but later after leaving the birth hospital 4. Many birth defects do not ever require inpatient care and won’t show up in Hospital ICD9/10 data sets. I was asked to meet with and help DOH with their data by adding cases that “I was aware of”. I declined based on the adage that “no data is better than bad data”. Producing data based on individual clinician recall, mining inaccurate incomplete ICD 9/10 data sets produces bad data. And the problem with bad data is that people will use it for their own biased agenda; there does not exist any accurate data saying there is or there is not an increase in birth defects or neurodevelopment problems on the Westside of Kauai.

Accurate data is attainable but it would be very manpower and time intensive and so would be very expensive. 1000 births, 5 years of Westside births could be studied by pulling records of Hospitals and the primary pediatricians records, phone calls to parents, and analyzing by trained epidemiologists would do it. Epidemiologists know that the magnitude of affect of a drug or toxin determines the number of births that would need to be studied in order to show a statsitcally significant finding. I do not want to disparage Dr. Pressler and her colleagues. Maternal and Child Health Title V Block Grant Report released 7/17/17 shows the great work they are involved in and the priorities and demands on their limited resources. I don’t know if the Westside of Kauai families bear the burden of more birth defects because of pesticides and I am sure no one else knows either. But I do know that in other locations with larger populations good studies have shown a correlation between birth defects and neurobehavioral problems with pesticides. I do understand the importance of jobs and a healthy economy for the health of families. But I know many Westside families and none would trade the health of their treasured children for a job if they knew a risk existed. All use of pesticide on Kauai is a risk to our children not just from seed company use. But I think we are going at this all wrong. We know these chemicals have potential toxicities. Why do we as citizens, why do our government agencies have to bear the burden and cost of proving they are harmful? Why don’t we demand that the users of pesticides follow the Fact Finding Report and pay for the good studies, pay for biologic sampling and prove to us that they are safe?

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Pesticides & Birth Defects on Kauai- Who do you believe?

Should pregnant women who live and/or work around high levels of pesticide use, particularly on Kauai’s west side, be concerned about birth defects?

A Honolulu law firm has recently been running radio advertisements on Kauai and Maui, stating:

“If you worked on a farm or lived close to the fields where pesticides were sprayed while you were pregnant, and your child was born with a birth defect…then your child may be entitled to significant compensation. Call 1-866-988-TOXIC (6942.)”   https://galiherlaw.com/service/birth-defects/

Several physicians at Kauai Veterans Memorial Hospital (KVMH), located on Kauai’s west side, believe there may be up to “10 times the national rate” of certain rare heart defects in newborns.  READ ACTUAL EMAIL FROM PHYSICIAN (name redacted to protect their privacy): https://tinyurl.com/y7djq7t2

The agrochemical companies that use, manufacture and sell pesticides will tell you there is no evidence of a higher incidence of birth defects on Kauai or anywhere in Hawaii.

The companies, of course, have a vested interest in ensuring their profits and protecting themselves from lawsuits.  The law firm, if successful in their law suits, also gains financial benefit.  And the physicians acknowledge they have not conducted long term peer reviewed studies.

So, whom do you believe?

The State Department of Agriculture (SDOA) and the Department of Health (SDOH), also state that there is no evidence of increased incidence of birth defects on Kauai.

However, the SDOA has no expertise dealing with complex health issues and neither agency has conducted any comprehensive studies regarding pesticides and birth defects in Hawaii.

Whenever SDOH testing is conducted, they always find evidence of pesticide drift.

When the SDOH tested streams on Kauai, they found atrazine and glyphosate.  When they tested the air at Waimea Canyon Middle School, they found chlorpyrifos, a Restricted Use Pesticide and known neurotoxin.  The amounts found are small but they should not be there at all.  There is no consistent or comprehensive testing and the chronic health impacts have not been studied.

The SDOH maintains a “Birth Defect Registry.”  The report presently posted online has not been updated since 2005.  The SDOH is in the process of updating this data.

Multiple sources confirm a strong association between pesticide exposure and birth defects:

The United States Environmental Protection Agency: “Exposure to a variety of pesticides have been linked to increased risk of birth defects.”

American Pregnancy Association: “If you discover you are pregnant and you live near an agricultural area where pesticides are being used, it is advised you remove yourself to avoid exposure to these chemicals.”

National Institute of Health: “A significant association was found between the season of elevated agrochemicals and birth defects.”

American Academy of Pediatrics: “Chronic toxicity end points identified in epidemiologic studies include adverse birth outcomes including preterm birth, low birth weight, and congenital anomalies, pediatric cancers, neuro- behavioral and cognitive deficits, and asthma.”

International news sources have reported on the concerns of local physicians who believe the rate of birth defects is higher than normal on Kauai.

The May 25, 2016 State/County Joint Fact Finding Group concluded: “there is simply not enough information to definitively conclude if its [pesticides] use by the seed companies plays any adverse role in the health of Kauai’s residents or environment.”

The report recommends increased testing, studies, buffer zones and other common-sense measures, which the Governor, the legislature the Department of Health and the Department of Agriculture have largely ignored.

In Hawaii, those who apply Restricted Use Pesticides in fields near communities, parks, schools and roadways, are not required to disclose which pesticides they are applying, the location, date, or time in which they are applied, thus making it impossible for any individual to make a truly informed decision.

My intention is not to instill fear, but to shed light on an important matter of public health.  If you are pregnant, or considering becoming pregnant, and you live and/or work around areas with heavy pesticide use, you should consult a medical professional you trust, read the available literature, review the limited local data that is available and come to your own personal conclusions.

1 – DOH Stream Study: http://www.arcgis.com/home/item.html?id=dcf02b8d5dcf4e0d9ed56e51c19b433b

2 – DOH Waimea Canyon School Study: https://hdoa.hawaii.gov/wp-content/uploads/2013/01/Waimea-Canyon-Air-Study.pdf

3 – DOH Statewide Pesticide Survey: http://www.arcgis.com/home/item.html?id=dcf02b8d5dcf4e0d9ed56e51c19b433b

4 – Environmental Protection Agency: http://bit.ly/2AdzXNK

5 – American Pregnancy Association:  http://americanpregnancy.org/pregnancy-health/pesticides/

6 – National Institute of Health: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2667895/

7 – American Academy of Pediatrics: http://pediatrics.aappublications.org/content/pediatrics/early/2012/11/21/peds.2012-2757.full.pdf

8 – International news about birth defects and pesticides in Hawaii: https://www.theguardian.com/us-news/2015/aug/23/hawaii-birth-defects-pesticides-gmo

9 – Joint Fact-Finding Study:  https://jffkauai.files.wordpress.com/2015/10/jff-kauai-final-report1.pdf

The above column was first published in The Garden Island newspaper “Hooser – Policy & Politics” on 11/29/2017

 

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Ripples- and the Power of the Pen

A few days ago, I received an email from a friend whom I rarely see, but who occasionally shares with me her thoughts and ideas.  The email, (a portion of which I share at the end of this column) contains a message within the message, as is so often the case.

First, it reinforces in me the need for all who endeavor to positions of leadership in our community to keep in mind “the long view,” and that our actions today will improve the lives of future generations.

But beyond that core message for the receiver to hear, there is a valuable message also for the sender: your words and thoughts matter, and they are the most affordable and effective tool you possess to create change in our community.

This one very simple and straightforward email has inspired me, and in turn I am sharing it with the hopes of inspiring others.

In the words of Robert Kennedy, “Sending forth a tiny ripple…those ripples build a current that can sweep down the mightiest walls of oppression and resistance.”

-Robert Kennedy, South Africa 1966 (paraphrased).

Whether in the form of testimony submitted on bills, letters to the editor or personal and direct email to friends, family and yes, most certainly to our political and community leaders – your words and thoughts matter.

The pen is indeed mightier than the sword.  I encourage you to use it.

We need to push and inspire our political leaders to do more.  We need to let them know we have their backs when they risk great political capital to champion the dramatic changes we desperately need.  And yes, we also need to hold them accountable when they fall short, and call them out when they cause harm.

There are many kinds of political leaders.  There are the “pragmatic idealists” who maintain a strong moral compass while navigating the often-treacherous waters of the political environment.  And there are the hardcore pragmatists, driven mostly by a base survival instinct and whose ideology is secondary to the need to maintain power and position.

Of course, there are other types as well on either end of the spectrum, but a certain degree of pragmatism is required, or the individual will relatively quickly crash and burn (in a political sense, either becoming ineffective or lose their election).

All are susceptible to being influenced by community and friends, and by the media.  All enjoy serving in elective office, all want to be re-elected, and all see themselves as “good people,” each believing they are doing the right things for the right reasons.

It’s important to keep in mind that even the hardcore pragmatist serving in elected office cares about “which way the wind is blowing,” and will change their tune the moment they realize the public opinion has shifted undeniably to favor a viewpoint different than theirs.

Thus, letters to the editor matter.  Consistent, courteous and reason-based emails and direct conversations with elected leaders matter.  When done in sufficient numbers over time such efforts will change the vote of the most unbelieving hardcore establishment politician (whose primary objective is to get re-elected).

This brings me back to the email that moved me to write this column.  The substance of the message was to encourage me to continue the work and effort that I am now engaged in, on Kauai and around the State.

“Remember Title 9? It was only enacted in 1970.  (Too late for those of my generation, who graduated in the 1960’s.)

Now the grandchildren of my generation are ALL participating in all kinds of sports and all career paths regardless of gender. The girls have no concept that there might be limitations placed on them because of gender. That’s wonderful!

Those who put so much effort into Title 9 and the changes that sprang from it really didn’t personally benefit – but their daughters and granddaughters did.

I KNOW that the hard work you are investing in this will pay off.

Your two beautiful grandchildren will live in a healthier world because of you.

If and when you get tired or discouraged…….. well, you know what to do. Hold/cuddle/ play with those two beautiful babies.”

Mahalo to the writer of the above for taking the time to motivate, educate and inspire me.  I ask all who have taken the time to read this far, to likewise share your thoughts via letters in the newspaper, or direct emails with elected leaders and with our community at large.

Your words matter.  To me, and to all of our elected officials.  Use them like our future depends on them.

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Am thinking of all that I am thankful for.

And this morning, my friend Mary is at the top of that list.
 
From an email I received a few days ago:
 
“Well, Gary, please know you always have my (usually unseen) support.
 
You WILL win eventually and you are moving things forward in the right direction right now.
 
You are absolutely on the right side of history.
There are some good things about being old (and tired). Us older folks have SEEN the changes.
 
As an example, when I was a child, girls did not usually become astronauts or senators or even news anchors.
We didn’t have supported sports programs in school, because “girls don’t like sports”.
 
Remember Title 9? It was only enacted in 1970.
(Too late for those of my generation, who graduated in the 1960’s.)
 
Now the grandchildren of my generation are ALL participating in all kinds of sports and all career paths regardless of gender. The girls have no concept that there might be limitations placed on them because of gender. That’s wonderful!
 
Those who put so much effort into Title 9 and the changes that sprang from it really didn’t personally benefit – but their daughters and granddaughters did.
I KNOW that the hard work you are investing in the pesticide issue will pay off.
 
Your two beautiful grandchildren will live in a healthier world because of you.
If and when you get tired or discouraged…….. well, you know what to do. Hold/cuddle/ play with those two beautiful babies.
OK- end of pep talk! (I’m probably the one who needs it more than you.)
 
Aloha,
Mary”
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On the ethics of working for the devil

In my career as a former state Senate leader, County Council member, and community advocate, I have shaken the hands of countless adversaries after a skirmish – political, legislative, and even legal. It’s not always an easy interaction though it is warranted in the interest of maintaining open communications and the simple courtesies of life. It’s also not easy because of what is left unsaid.

You see, I so very much want to ask: “How can you possibly represent a particular cause or company that is clearly doing harm to the community to which you belong?

On the heels of the hearing which just took place on the lawsuit against BLNR and Syngenta, I find myself struggling with the same question as I watch competent, talented professionals, good people,  place themselves at the service of corporate wrong-doers. I say corporate wrong-doers because I have witnessed first hand, and heard enough reports from the community to be dismayed by the constant illegal behavior and actions of Syngenta.

Why would a good man choose to support the actions of a bad company?

Even murderers and rapists deserve legal representation, and I am sure the attorneys representing Syngenta will likewise argue that the company deserves the best legal representation money can buy. But why would they want to sell their expertise and their intelligence and skills to aid and advance the agenda of a company that is causing long lasting harm to the community in which they are choosing to operate?

How can anyone feel good about helping a company like Syngenta do to the people and land in Hawaii what Syngenta is forbidden by law to do in in its home country, Switzerland?

Some of the signs held by protestors who successfully persuaded regulators in Europe to stop Monsanto and its use of dicamba in its tracks said: “Our children are not your lab rats.” We might say the same to Syngenta. The children and infants on Kauai are not your lab rats.

Syngenta is an international chemical company doing very bad things around the world.  While evil will perhaps seem an over-the-top description to some, that is the word that comes to mind (that and criminal as well) when I think about their conduct and impacts around the world.

Do the attorneys representing a company like Syngenta share in the moral responsibility for the companies conduct?  Or is providing legal representation just a job with no moral or ethical implications?

This question I am sure has been debated extensively in universities everywhere, as it relates to the ethics of law and business. The answers are never simple. But shouldn’t we be asking the question at least?

It seems that there are at least two or three categories of workers who face the same  ethical and moral questions.  The entry-level uninformed worker perhaps not aware of the harm their company is doing to the health and welfare of people and the planet, I would think get a pass on this.  Likewise, the worker struggling to put food on the table and pay the rent, also should probably not be blamed for the sins of their employer.

But the wealthy, educated and informed who actively promote and defend the agenda of a company that causes great harm in the world, surely they must bear some responsibility?

My guess is the attorneys and other well-paid corporate executives who help the bad guys of the corporate world do bad things around the world, stop asking themselves these questions.  Instead they accept the profits that come their way, and to compensate for helping corporate criminals such as Syngenta pollute the water, poison the people and in general pillage the planet these high paid executives might join the boards of nonprofit organizations, donate their legal expertise on occasion to help poor people and perhaps even attend church on a regular basis. But can you really whitewash complicity or tacit approval?

To be clear, Syngenta is a very bad actor around the world, which I suppose is a useful and profitable thing if you are a lawyer being paid to defend their harmful actions.

I have no easy answer and each of us must at the end of the day, look ourselves in the mirror and be comfortable with the person they see.

If you have read this far, and are perhaps unfamiliar with those harmful actions of which I allude to, I’ve outlined a few below:

  1. Syngenta and other chemical companies manufacture products that are killing farmers in India and other countries.                                         http://www.financialexpress.com/market/commodities/mncs-syngenta-bayer-monsanto-blamed-for-farmers-deaths-in-maharashtra/897043/

2.  Syngenta lies and attempts to mislead entire countries as to the safety of their products, some of which are banned in their own country but which they use by the ton in Hawaii and around the world.                  https://www.nytimes.com/2015/02/24/business/international/a-pesticide-banned-or-not-underscores-trans-atlantic-trade-sensitivities.html

3.  Syngenta is one of the largest polluters of ground-water in the world.                                                            https://environmentaldefence.ca/2016/11/01/atrazine-drinking-water-pollutant/                                                                                                  https://www.bna.com/syngenta-water-systems-n12884909659/

4.  Syngenta attacks and smears the reputations of scientists who challenge them. https://www.newyorker.com/magazine/2014/02/10/a-valuable-reputation

5.  Syngenta mislabels and mismanages its pesticide products.      http://pulse.ncpolicywatch.org/2016/09/19/epa-fines-syngenta-1-2-million-for-selling-misbranded-pesticides-failing-to-keep-study-records/#sthash.H2hOXdRk.dpbs

6.  Syngenta misleads farmers.                                                         https://www.bloomberg.com/news/articles/2017-09-26/syngenta-said-to-pay-more-than-1-4-billion-in-corn-settlement

7.  Syngenta does not protect its workers.                                         https://www.epa.gov/newsreleases/epa-files-complaint-against-syngenta-farmworker-safety-violations-kauai

8.  Syngenta security guards kill peasant activists in Brazil.              https://www.swissinfo.ch/eng/two-killed-in-shoot-out-at-syngenta-gm-farm/6208040

I may never understand the motives or ethical considerations of the adversaries who shake my hand, but I know that I along with many others will continue to fight the wrongdoings of companies like Syngenta that they choose to support and serve.

Our community will not stop in this effort until at the very minimum they: Fully disclose what pesticides they are using in our community, agree not to use them next to schools, hospitals and homes, and follow the same reasonable regulations they are required to follow in their own country.

Please join us in this effort if you can.

Urgent – Please support the HAPA Legal Fund today if you can. Your help is needed now, prior to December 1 if at all possible to ensure the HRS343 State/Syngenta appeal, plus to support future and ongoing legal actions, communications and administrative support pertaining to pesticides use by industrial chemical companies, water diversions and the general protection of health and environment.  Any amount is helpful and greatly appreciated, our goal is to raise $20,000 by the first of the year, but at least half must be raised by December 1 in order to move forward with confidence on the matter now before the courts. http://www.hapahi.org/donate/  All contributions to HAPA are tax deductible.

Gary Hooser   http://www.garyhooser.com

The Hawaii Alliance for Progressive Action (H.A.P.A,)  http://www.hapahi.org/take-action/

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We lost, we won, we will appeal – (Summary of yesterdays results in court) – Ke Kauhulu o Mana versus the State Board of Land and Natural Resources (BLNR) and Syngenta 

For those wondering what happened in court yesterday below are my thoughts and observations.

Judge Randal Valenciano seemed very familiar with the section of law being argued, HRS343 – the Hawaii Environmental Policy Act (HEPA).  He also seemed to have studied closely prior to the hearing the arguments being presented by both sides.  And it is also likely that he had come to his core decision prior to hearing the oral arguments presented yesterday (which would not be unusual).

As a plaintiff, our position was that the BLNR/Syngenta did not comply with HRS343 and improperly exempted from environmental review activity being conducted on approximately 60 acres of land part of which was conservation zoned and located adjacent to the coastline, and historically designated as “Crown Lands”.

The other sides position was that because this was “ongoing use” that HEPA did not apply, and if it did apply the activities were “exempt” because of the “ongoing use”.  Syngenta’s attorney dwelt on the use of the word “proposed” in the HEPA law and argued it only applied to a “proposed use” and not an “ongoing use”.

Syngenta also attempted to argue that the BLNR did not even have to exempt the matter from HEPA, because HEPA did not apply.  The BLNR attorney however acknowledged that HEPA did apply and the Judge stated clearly that Syngenta was incorrect.

However acknowledging that HEPA did apply while significant in an of itself (and is a decision by the court that we are celebrating) was not the end of the story.  The next step in the courts decision making process was to address the question of, “Did the action/activity qualify as a ‘proposed use’ or not?”

While our side argued that the current use on the property had never undergone any environmental review, had operated under faulty CDUP conditions (or lack thereof), that its original use as sugar cane had changed dramatically over the years, and that a significant portion of the property had essentially never gotten the required permits needed to conduct the present activities – the judge in the end and we believe erroneously, sided with the State/Syngenta.

Judge Valenciano verbally acknowledged but apparently failed to be swayed by the fact that Hawaii Administrative Rules (HAR) state clearly that:

“If an exempt action is proposed in a particularly sensitive environment, or if successive exempt actions could have a cumulative impact, the exempt status of the action would be invalid.”

This provision is intended to supersede all exemptions to the HEPA law, however for whatever reason this was not considered or otherwise was discounted by the court.  Clearly the actions of Syngenta with regards to the intense application of Restricted Use Pesticides, have a “cumulative impact” and the actions are being conducted in a “particularly sensitive environment”.

Another key component that the judge acknowledged but refused to consider is that the State/Syngenta failed to consult with the State Department of Health (SDPH) prior to issuing its exemption even though the Office of Environmental Quality Control states clearly in their exemption guidelines:

“The proposing or approving agency must consult with agencies or individuals having jurisdiction and expertise before declaring a project to be exempt from preparing an environmental assessment.”

The SDOH is the agency that holds all of Syngenta’s experimental permits, and obviously is an agency that “has jurisdiction and expertise” pertaining to the potential health and environmental impacts involved in this matter.

So to summarize the summary:

The Judge ruled against our primary contention that the State/Syngenta failed to comply with HRS343, based on his belief that they are conducting an “ongoing use” and it is not a “proposed use”.  We believe his reasoning in reaching this conclusion was flawed, did not take into consideration the scope and breadth of the existing use nor the factual and historical background, and we will be appealing the decision.  

However, Judge Valenciano did affirm that HRS343 does apply to the State/Syngenta (and other companies in a similar situation) when the use is a “proposed use”.  So based on this courts decision, when Syngenta or others attempt to expand their use of State lands in the future beyond their existing foot-prints, this would trigger HRS343 and the “existing and ongoing use” argument would not be relevant.  We believe this acknowledgment by the court is significant and are celebrating it as a win. Important note: In general, HRS343 applies only to State or County lands and not to private lands.

Disclaimer: I am not a lawyer, though I did briefly attend the UH Richardson School of Law and have been involved in making law at both the County and the State level for the past 16 years.  In addition, I served for a brief time as the Director of the OEQC, the agency that administers and manages HEPA and HRS343.  In addition, I am the volunteer President of the Board of Directors for the Hawaii Alliance for Progressive Action (HAPA) who is one of the plaintiffs in this case.

Note1:   Judge Valenciano frequently referred to “Umberger” that clearly was used as the basis for his decision:

Umberger v. Department of Land & Natural Resources

https://law.justia.com/cases/hawaii/supreme-court/2017/scwc-13-0002125.html

Note2: Earlier I posted on FaceBook copies of some of the Syngenta permits that are heavily redacted but indicate they are conducting activities in areas near or adjacent to “critical habitat” and the presence of endangered species. https://www.facebook.com/garyhooser/posts/10214047127596734?pnref=story

Note3: Here is another Hooser Blog item that further details key elements surrounding the law suit: https://garyhooser.wordpress.com/2017/11/06/state-blnr-grants-syngenta-free-pass-on-environmental-review/

Urgent – Please support the HAPA Legal Fund today if you can.  Your help is needed now, prior to December 1 if at all possible to ensure the HRS343 State/Syngenta appeal, plus to support future and ongoing legal actions, communications and administrative support pertaining to pesticides use by industrial chemical companies, water diversions and the general protection of health and environment.  Any amount is helpful and greatly appreciated, our goal is to raise $20,000 by the first of the year, but at least half must be raised by December 1 in order to move forward with confidence on the matter now before the courts. http://www.hapahi.org/donate/  All contributions to HAPA are tax deductible.

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