 Aloha, I'm Senator Russell Ruderman, State Senator from the Pune and Ka'u District on the Big Island, and you're here at the Ruderman Roundtable on Think Tech Hawaii. Thank you for joining us today. Today our guest is Paul Atchitoff. Paul Atchitoff graduated from Harvard College and the Columbia Law School, and for the last 22 years has been managing attorney for the Hawaii Office of Earth Justice, a national non-profit public interest environmental law firm. Paul practiced business and environmental litigation in private practice in Los Angeles and Honolulu for 11 years before joining Earth Justice in 1994. He's handled a wide variety of public interest environmental matters such as endangered species, commercial fisheries, water pollution, and stream restoration cases. For the past decade, Paul has focused on addressing problems caused by genetically modified organisms and pesticides. Welcome to the show, Paul. Thanks for joining us. Thanks for having me on the show, Russell. So lately you have been very involved in defending three of the counties in GMO or pesticide related cases that, tell me about that, there's three counties passed bills each of which was overturned in a court that is now under appeal. Is that correct? That's correct. Now I'm not representing Maui County or the county of Kauai. I'm representing community groups on Kauai that is defending the Kauai ordinance. And I am representing the county of Hawaii. But I'm not involved in the Maui case. But in any event, you're right that each of the counties passed an ordinance addressing genetically engineered crops in different ways and the Kauai ordinance also addressed pesticide use in that county. And the lower court, federal court in Hawaii, found that all three of those ordinances were preempted by state and federal law and therefore unenforceable. And all of those cases were appealed to the Ninth Circuit Court of Appeals. And the Ninth Circuit was in town about six weeks ago. And I and other attorneys argued our appeals to try and persuade the court that those ordinances should not have been found to be unlawful. So we're waiting to hear from them. I see. So you've had the trial, you've presented your case, and now you're waiting. The judgment? Is that correct? Is there more to? No, we're just waiting right now. It could take a few months. It could take more than a few months. It's hard to say. Sometimes the court of appeals rules quickly. Sometimes it takes longer. So there's nothing to do but wait. Okay. So the process is done except for waiting for the judgment. That's right. There's no more trial to do. What can you tell us about how did that go? I mean, I'm particularly interested in the Hawaii County one, but I'm interested in the whole statewide situation. How did it go to your eyes? I have always felt that the counties have strong arguments. And I obviously judge Curran in the case of the Big Island and Kauai ordinances and Judge Moway in the case of the Maui ordinance disagreed. Nevertheless, I continue to feel that the counties do have the authority to regulate genetically engineered crops. The state of Hawaii has no laws whatsoever regulating genetically engineered crops. None at all. And the court's decision saying that notwithstanding that fact, only the state can regulate genetically engineered crops, I believe, is unprecedented and simply not supported by the law in Hawaii or anywhere else. We'll see what the Ninth Circuit has to say. They may disagree, obviously. Very interesting. By the way, thank you for arguing on behalf of our counties. That's an important issue. Now, you mentioned pesticides. I know that the Kauai case was largely involved with pesticide regulation in buffer zones, right? That's right. Tell me, for those who might not know, why is pesticides part of the discussion when we talk about regulating genetically engineered crops? Well, conventional farmers as well as growers of genetically engineered crops or genetically engineered seed crops, as is common in Hawaii, they all use pesticides. Organic farmers don't, or at least the ones that they use are quite different from the pesticides that conventional farmers use. But the growing of experimental genetically engineered crops is a very pesticide-intensive operation. And if you go over, for example, on Kauai, go to the west side, you drive mile after mile of fields of either experimental crops or commercialized seed-producing operations. And they use many, many different pesticides, and some of these are quite toxic. And the reason it's in the discussion is because, for example, those on the west side, you've got towns like Kukaha, Waimea, where people live in close proximity to these fields. And these pesticides do drift out of the fields, and people are exposed to them. They go into the surface water and go into the ocean. And they go into, for example, there's 40 miles of drainage ditches out on the west side of Kauai that go through the agricultural fields and drain into the ocean right there. Estesides go into that water, along with a lot of other pollutants. It's not treated at all. People go into those canals. People swim in the water right off the beach. And it's at this point simply not even regulated for what's in that water. So if pesticides stayed exactly where they were sprayed, then the only issue would be the impact on the field workers, which can be very significant, and the impact on people who eat the food. But it doesn't just stay where they put it. So you also have other people who are affected. It goes into the environment, into the oceans, and you're sure. So a few years back, a couple of the counties banned genetic modification of tarot and coffee. Is that correct? Yes. At this moment, there is on the books, there has been for eight or nine years an ordinance in Hawaii County that bans genetically engineered coffee and kalo. And on Maui, they also have an ordinance that I think was passed the following year, if I'm not mistaken, that bans genetically engineered kalo. Nobody challenged those, even though the state was well aware of it at the time. The legislature never had anything to say about it. Industry never had anything to say about it. Nobody said, oh, you know that the counties don't have that authority. Only the state can regulate genetically engineered crops. Nobody said a word about it because, in my view, nobody in the state actually believed that the counties did not have that authority until the chemical companies came along and challenged, in the first case, the Kauai ordinance. And their attorneys made some creative arguments about the counties not having that authority. And Judge Curran was persuaded by those arguments. But if the Ninth Circuit upholds Judge Curran on that, then it stands to reason that the kalo and the coffee ordinances will go down as well. So the county ordinances were county ordinances affecting, regulating GMO crops, and they have never been challenged. That's right. I mean, for a simpleton like myself, it seems like, therefore, the counties have the right to regulate GMOs, but that's what is being decided by the greater minds of myself right now. Okay, good. Recently there was the Kauai Joint Fact-Finding Study, if I'm getting the name right. It's supposed to be around a wide range of input. Tell me what you read. They came out with their final report. What did you see in that report? What did you learn from it? What does it say? I've heard people on both sides claiming that it vindicates one side completely and the other side says the exact same thing. What do you read in that report? What is it telling us? What I read in that report is that there are pesticides, some of which are quite toxic, depending on who's exposed and to what extent, that are being found where legally they are not supposed to be and where they would not be if they had been applied according to the label, which is the law, although unfortunately the labels are not as protective as they should be because even if you follow the label they can get into the environment, but nevertheless they are found where they shouldn't be. I think a lot of the argument has been, well, is that harmful? What I get from the report is that because the state has not done very much in the way of monitoring or sampling of air, of water, of soil for these chemicals, it's very difficult to answer that question definitively to say that, no, it's absolutely harmless or it's very harmful. If you don't have data it's hard to make scientific determinations. You instead, you end up with fears, you have rhetoric, you have so forth, and so I think the report was quite straightforward in saying that if we want to have science-based determinations about what's going on, the state needs to do a much better job in actually taking samples and analyzing them and not sitting on the sidelines. And unless and until the state does that, I don't think either side can say that they are vindicated. I have heard the Department of Agriculture's perspective being, well, there's no proof here that it's hurting people. To me, that is a very irresponsible thing for a state agency to be saying, an agency that is responsible for regulating pesticide use on behalf of the state, which is responsible for protecting public health and not just protecting the profits of Big Ag, to be jumping on this report as if it demonstrates that pesticides in the environment are harmless. The report doesn't say anything like that and suggesting that it does, I think, is just wrong and very disappointing. So let me clarify. So the report states that there's no clear evidence of harm from pesticides, but it also states that the data that we would need to really come to that conclusion is absent. That's exactly right. So whose job would it be to go out and begin to collect the data? Would that be the Department of Agriculture, Department of Health, EPA? I think that it's primarily on the Department of Health. And I think that they have not been doing as good a job as they should be. I think that there is a lack of resources being put towards addressing the issue of pesticides in Hawaii, whether on behalf of the Department of Health or the Department of Agriculture. The Department of Agriculture is responsible for enforcing our pesticide laws, and I think it's doing quite a poor job of that because it simply doesn't devote the resources to it. And whether it's because they don't have the budget or because the legislature has not seen fit to give them the budget or their priorities within the budget they have, the bottom line is they're not doing the job that they are supposed to be doing. Paul, let me interrupt you there. We'll come back in just a minute. Sure. And thank you very much. We're with Paul Acetoff, Managing Attorney for Earth Justice in Hawaii. I'm State Senator Russell Ruderman with the Ruderman Roundtable on Think Tech Hawaii. We'll be right back. Thank you for joining us. Aloha. This is Reg Baker with Business in Hawaii. We're a show that broadcasts every Thursday at 2 o'clock. We would love to hear from you, and you can reach us in several different ways. We have a hotline that you can call in at 415-871-2474, or you can email us at ThinkTechHawaii.com, or you can tweet us at ThinkTechHI. Looking forward to hearing from you and seeing you on our next show. Aloha. For a very healthy summer, watch Viva Hawaii. We are here live on Mondays at 3 p.m., and we bring guests like our best health coach Elena Maganto eat well and follow her tips. Viva la comida saludable. Hi, I'm Ethan Allen, host of Likeable Science here on ThinkTechHawaii.com. I hope you'll join me every Friday at 2 p.m. to discover what's likeable about science. Welcome back. I'm State Senator Russell Ruderman. I'm here at the Ruderman Roundtable with Paul Adjutoff, managing attorney for the Hawaii Office of Earth Justice. Paul, we were talking about pesticides and regulations and the fact that perhaps they're not being regulated sufficiently here in Hawaii. Is the state able to, from a financial point of view, if they wanted to more properly regulate and monitor for pesticides, could they do it, or would they need more resources to do so? Well, the Department of Agriculture, which has currently the primary authority to enforce first pesticide laws in the state, I believe they're understaffed. I don't think there's any question that they're understaffed. I believe the Department knows it, the EPA certainly knows it. Now, what their budget is and how they're allocating that budget, I don't really think that that is the real question. The question is, how much do they need to do the job? And is the legislature giving them that amount of money? And if they are, why aren't they using it in that way? And if they are not, why don't they? Because there is a certain minimum amount of money that's needed. Hawaii is one of 49 states that has been given by the EPA, primary authority, to enforce federal pesticide laws within their state. The EPA has been quite critical of our Department of Agriculture in its failure over the past several years to adequately enforce and investigate pesticide problems in the state. There is a big stack of files sitting on the Department of Agriculture's desk of pesticide issues that have simply not been addressed. And some of these are so old, dating back for almost a decade, that the statute of limitations has run out on some of these so that they couldn't be prosecuted even if there were, it was shown to be something that should be prosecuted. And the Department knows this, EPA has made this very clear. And as a result, I believe that EPA should revoke from the Department of Agriculture this authority and that EPA should take over this enforcement because I don't believe that the state is taking it seriously enough. They're simply not funding it adequately or the Department's not using the funds it has. I don't know which it is. But I've been litigating environmental violations for a long time and it's quite common to hear agencies complain that they don't have the money, they don't have the money. We hear this all the time. What that usually means is there's a lack of political will. And sometimes you have to go to court and say, look, you're breaking the law. You're putting people's health at risk because you are spending taxpayers' money in this way rather than in that way. So you need to make a decision. And I believe in this case, if the state is not willing to put the kind of money towards enforcing pesticide laws that are unnecessary, then they shouldn't be entrusted with that authority and the EPA should take over. Has the EPA done that with any states? If it has, I'm not aware of it. So the fact that we're even, they're even looking at this or why perhaps suggest that why he's done a particularly bad job of regulating this. I think that's true. I think that's true. Is it also true that we have a somewhat unique pesticide situation with all these experimental crops and seed crops? Do we have a different type of pesticide use environment than what's typical around the country? I think what's different and unique about our situation are two things. Number one, Hawaii is a place that has more experimental field trials for genetically engineered crops than anywhere else in the country. That's number one. So you, and as I said, that's a very pesticide intensive industry. The other aspect of it is we're very small and we are also very densely populated in the sense that these fields are near population centers. If we were talking about some place in the Midwest where you have literally millions of acres and the nearest town might be 100 miles away, that's a little different from where you have places like on Molokai or on Kauai and even on Oahu where you have towns that are literally down the street from heavy pesticide use. And then we have what we think of as pure pristine coastal waterways right downstream from them too that in the Midwest we might not have that problem as well. Well, the Midwest has a big problem, frankly, with pesticides in their surface waters. Atrazine, for example, which is a syngenta product and is used in Hawaii quite a bit, has been found in practically all of the surface waters throughout the Midwest. If you look at a map around the Mississippi Valley, everywhere where the big commodity crops or where corn is grown, you will see that atrazine pollution is very widespread. And as a result, a lot of the water boards of those counties have had to sue syngenta for money to get that out of the water supply. And in fact, even Kauai County got some money from the settlement a few years ago from a class action against syngenta because of atrazine in the water supply. So speaking of untreated runoff, pesticides flowing into the waterways and into the oceans, we were talking earlier that you're involved in an action regarding ADC and untreated runoff. Can you tell us about that? Yes. Well, that's the Agri-Business Development Corporation, which is... And by the way, what do they do? I'm sorry. What they do is that they are tasked with promoting agriculture in the state, and they are associated with the Department of Agriculture. And one of the things they do is they lease lands, for example, they lease a lot of the lands over on Kauai on the west side that are currently being used by the biotech companies, but they lease land all over the state. We filed a lawsuit a couple of weeks ago against ADC for violations of the Clean Water Act. Over near Kikaha and Waimea on Kauai, there is a canal system, a drainage system that is about 40 miles of canals that weave all through the fields and through the towns and drain directly into the ocean. The water is not treated, and it contains a variety of pollutants, including pesticides that come from these agricultural fields. And for many years, ADC had a permit under the Clean Water Act that restricted what could go in the water and required them to sample regularly and to report the results of their sampling publicly on a regular basis. Last year ADC decided that it couldn't be bothered with this permit compliance any longer and went to the Department of Health who said, okay, you don't need a permit anymore. So we believe that that's legally wrong. We believe they're violating the Clean Water Act. We believe that the public has a right to not only to know what's going into the ocean where they swim and fish and play, but they have a right to have limits on what can be put in that water. So we've sued them and we'll see how that goes. So that's brand new. That's a new story. The Clean Water Act, now that's a federal act, but they had a permit from the State Department of Health or it was a federal permit. It's a federal permit that is issued under federal law. The Clean Water Act is a federal law, but the State Department of Health has been delegated the authority to administer the Clean Water Act in certain respects in the state, just as the Department of Agriculture has been delegated authority to enforce federal pesticide laws in the state. If a state agency demonstrates that it has the resources to do the job, then it can get this authority. If it doesn't have the resources, then the federal agencies can take this authority back. Now the ADC, is it a part of the Department of Agriculture or is it a separate or semi-autonomous agency? I'm not aware of another agency. There may be others within the state that are similarly set up. I don't know of any others, but it is a separate or affiliated in certain ways with the Department of Agriculture, the Board of Directors. There are people sitting on the Board of ADC that come from the Department of Agriculture, as well as other agencies. So there is a relationship there, funding relationships and so forth, but it is a separate corporation with defined tasks. Now does the ADC, when they lease land, do they make any value a judgment of you're going to grow a seed crop, you're going to grow flowers, you're going to grow food to be consumed in the state? Do they have any kind of mandate to try to help food production in the state, or is it simply a matter of leasing agricultural land to whoever wants it? Well, I think that's a question of how they interpret their mandate. They may interpret their mandate as simply leasing it to anyone who grows anything. I think whether that's what the legislature intended, whether that's what's in the public interest, those are different questions. Let me stop you right there, Paul. They're almost out of time. Tell me, Earthjustice, how would someone contact you if they want to learn more about you? How can they get involved and support what you do at Earthjustice? Earthjustice has a very extensive website, Earthjustice. Just Google Earthjustice and it'll be right there and it will show what work we're doing in all of our offices around the country. Every case that we file gets represented there on some level. Press releases are put up there for people to read, where there are blogs in which we discuss the cases that we're working on. If people want to donate money, which we always appreciate, there's an opportunity to do that on the website. So I encourage people to check it out and see what we're doing. Well, thank you. As a layperson who cares very much about the environment, I take great comfort in knowing that an organization like Earthjustice exists and that you're as powerful and successful in advocating for the environment as you have. Thank you very much for joining me today, Paul. Thank you very much, Russell. This is State Senator Russell Ruderman at the Ruderman Roundtable. We're here on Think Tech Hawaii every other Tuesday afternoon at two o'clock. You can follow us at Think Tech Hawaii and we'll see you in two weeks. Mahala.