Did Mayor Undermine Kauai Council's Legal Fight Against Biotech Giants?

Kauai Mayor Bernard Carvalho is being accused of a one-two punch — both below the belt.

He garnered a lot of attention Thursday when he vetoed a GMO and pesticide disclosure bill that has the overwhelming support of the Garden Island's County Council.

But on Friday, supporters of the bill expressed mounting anger for another step he took. He unsealed a legal document that could underscore the island's courtroom defense of Bill 2491 if the county has to defend it from legal challenges threatened by the biotech industry.

The document offers the county attorney's assessment of the legal challenges facing the bill. Releasing the document, supporters of the bill say, amounts to leaking a possible roadmap to the county's legal strategy in case the biotech industry follows through on threats to sue.

The county counsel would represent the county in possible legal proceedings. Critics say that the mayor released information that jeopardizes the county's chances of winning a court battle.

Andrea Brower, a key supporter of the bill, said in a written statement Friday that the mayor's action is "a double betrayal."

The polemic bill would require biotech companies to disclose details about pesticide use and farmers to tell the county if they are growing genetically altered crops, and violators can face fines or jail time.

The Kauai County Council, which voted 6 to 1 last month to pass the bill, will likely move to override the mayor's veto.

Beth Tokioka, a spokeswoman for the mayor, defended Carvalho's decision to declassify the document, noting it's best to be forthcoming with the public about the bill's legal challenges.

"The mayor has the right to waive the attorney-client privilege if he feels it’s in the best interest of all involved," Tokioka said by email. "In this instance he has chosen to do so, feeling that with such a contentious issue, the key to finding consensus is through an overabundance of information. He wishes to be as transparent as possible."

Deputy County Attorney Mauna Kea Trask's 66-page legal opinion to the mayor details a number of areas where the county may be on shaky legal ground if the legislation becomes law.

In particular, there's a "strong likelihood" that a court would rule that the county overstepped federal and state laws, according to the opinion. There are also legal questions about whether the county council has the power to assign new functions to a county department that were not initiated by the mayor, whether the bill is an invalid exercise of police power, and whether it violates state law that forbids officials from declaring farming operations a nuisance.

The "county attorney's office concludes that there are many legal challenges facing Bill 2491," writes Trask.

By contrast, prominent environmental attorneys released a statement last month saying that Bill 2491 was sound and urging council members not to be swayed by threats from the biotech industry.

Earthjustice attorney Paul Achitoff, one of the lawyers who signed the statement, told Civil Beat on Friday that the mayor's decision to release the legal analysis was "nuts."

"It gave him more political cover," said Achitoff. "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."

Earthjustice has offered to represent community groups that may intervene in potential lawsuits between the county and the biotech industry.

The mayor's decision to release the legal analysis contrasts with an earlier vote by the county council to keep such information confidential. Last month, the county council voted 5 to 2 to keep a similar county attorney's office analysis sealed.

"In court, the process is an adversarial one, so you don't disclose your strategies or information to the other side," said Councilwoman JoAnn Yukimura at the time. "So if we are going to court to defend Bill 2491, as is a possibility, then it's in my opinion and usually counsel will advise as such, that we do not reveal our hand."

Syngenta attorney Paul Alston noted that the biotech industry had made public its own 40-page memorandum on what it believed to be legal flaws in the bill and said that it made sense for the county attorney's office to do the same.

"Then people interested in seriously studying the issues, instead of just offering soundbites or doing a very superficial review of the legal issues could have a serious debate about those things," he said.

In addition to new pesticide and GMO disclosure requirements, Bill 2491 also requires the county to conduct studies on the potential health and environmental harms associated with pesticide spraying. And it requires buffer zones between biotech fields where pesticides are being sprayed and public spaces, including schools, parks and hospitals.

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