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By Stephen Fox
1-5-17

Court Rules Feds Cannot Prevent Local Governments From Banning GMO's; Hawaiians Unprotected from Egregious Corporations

The US Court of Appeals ruled back in mid December that federal laws cannot be used to prohibit states and counties from creating laws regulating, labeling, and even banning genetically modified crops.

This monumental decision by the Ninth Circuit US Court of Appeals was a ruling regarding whether federal and Hawaii state laws supersede the authority of individual counties to regulate the use of genetically modified crops and pesticide use.

Because of its almost limitless growing season and its being a testing ground for all kinds of Monsanto genetic experimentation and modifications, Hawaii has been in the middle of the debates over Genetic Modification for decades as Monsanto and others have used the islands for many kinds of agricultural research and local farmers have vigorously resisted them. This is a victory for Hawaii's farmers and for the 7000 year old history of agriculture itself.

Many of these same companies have abused the very concept of research by spraying 20 times more insecticides and pesticides than is permitted in the mainland of the United States.

The most egregious violations occurred in 2012, when 18 tons of chemicals prohibited in Europe like atrazine, paraquat, and others, were broadcast all over Kauai, an island with a land mass of about 20 by 30 miles. A large jump in birth defects occurred almost immediately, and schoolchildren were hit heavily with lung problems and eye irritations, according to reports from many physicians on the island, plus a 50% jump in special education statistics over the rest of the islands.

The relevant Court of Appeals decision was welcomed in the many desperate Hawaiians. The decision will partially limit the unbridled and abusive powers exercised by Monsanto, Dow Chemical, Sygenta, and other "research" corporations.

Federal law does not prevent state or local governments from passing local laws which regulate or ban the commercial growing of GM crops. By such a ruling, the 9th Circuit Court of Appeals recognized the medical harm that wold derive from large scale GM agriculture. They wrote that "the cultivation and testing of GE [genetically engineered] plants raises several well-documented concerns."

The ruling is entirely consistent with the 9th and 10th Amendment to the US Constitution which allows states to exercise control over areas that are not explicitly claimed by prior federal statutes and other measures passed by Congress. How is this ruling relevant?

By ruling that "the regulation of commercialized crops, both of GE and traditional varieties, remains within the authority of state and local governments," they temporarily put a stop to unchecked corporate abuses of reasonable health standards.

The court ruled that "transgenic contamination has previously caused significant economic impacts on farmers of conventional, non-GE crops," and that the "cultivation of GE crops also may raise environmental concerns, such as harm to beneficial plants and animals caused by the increased use of pesticides sometimes associated with testing and growing GE crops, the proliferation of 'superweeds' and other pests resistant to pesticides, and the reduction of biodiversity."

How long will this stand up? At least, until it is heard by the United States Supreme Court, which may or may not uphold the Circuit Court of Appeals. Strategically, the corporations will most likely wait until the Trump administration appoints a new Supreme Court Justice, but even then, Justice Clarence Thomas might have to recuse himself, having worked formerly as a Monsanto corporate lawyer. He left his job in the administration of John Danforth, Missouri's Attorney General, when Danforth was elected to the United States to become a Monsanto corporate lawyer for 3 years, from 1976 to 1979.

Would that disqualify him from ruling on a corporate driven appeal of the 9th's decision? In a sane world, yes, one would think so. I would hope he would voluntarily and ethically recuse himself from this one, if it is to be heard at all.

This decision could be viewed as an important vindication of local and state governments and their powers. Yet, inexplicably to me, it will barely advance the cause of Hawaii communities hoping to regulate or ban GMOs and pesticide use.

Something for the Hawaii Legislature to take up, for sure, and of the 25 members of the state Senate, only five or six Senators I believe have the integrity, courage, and intelligence to take this further in specific legislation. There will be posturing there for sure, but remember also that Hawaii's Governor, David Ige, have proven that he is willing to be a veiled but deadly tool for Monsanto, even as a public relations gesture when it pertains to products no longer made by Monsanto.

I am speaking from personal experience from back in the 2008 when he was Chairman of the Hawaii Senate Health Committee. In that position, he killed a bill to ban aspartame that had been signed as cosponsors by 14 of his fellow 24 other Senators by simply not scheduling. Such services can be rewarded by maneuvering politically the kind of political vacuum that led to his Governorship.

The key to advancing such legislation, to protect Hawaiians, it seems to me, is 46 year old State Senator Josh Green, an Emergency Room physician from the North Kona coast, who, quite logically, because he is the only physician in the Hawaii Legislature, is now the Chairman of the Senate Health Committee.

I call upon him personally in this article to take the real lead in what would now be a remedial legislative effort.

The court ruled that Hawaii's county governments have no authority to regulate or ban GM crops unlike in other states. In Hawaii, such authority rests with the state alone due to existing state legislation on the matter.

Quoting from Whitney Webb's article in Mint News:

"Earth Justice attorney Paul Achitoff expressed his disappointment with the court's 'misinterpretation' of Hawaii law, saying that 'the decision leaves Hawaii unprotected from the harms the Ninth Circuit acknowledged. We believe that when Hawaii's state courts have an opportunity, they will reject the Ninth Circuit's conclusion on this point and allow Hawaii's people to protect themselves, since the State certainly hasn't protected them."

The court ruled that only the US Department of Agriculture can regulate field trials and experimental GM crops, which never state or local governments can ban or regulate. This will be yet another blow to Hawaii's communities who have fought for years to regulate experimental pesticide use throughout the islands, and this might be the substance of other appeals to the Supreme Court by Hawaiians themselves, not the corporations.

In a comment prepared for this article by Dr. Betty Martini, the pre-eminent aspartame opponent stated: "Remember the patent shows aspartame to be a GMO product. In fact, I sent the formula to the UK publication, the Independent, and they published it on the front page over a royal wedding!"

http://www.independent.co.uk/news/worlds-top-sweetener-is-made-with-gm-bacteria-1101176.html

It is so poisonous it travels by Hazmat Placard. It is adulterated and violates interstate commerce laws. Before the Augusta, Georgia plant closed one employee called very sick years ago, I asked him back then how they made it and he said, "I don't know lady, all we have down here is toxic waste and people who work here are ill."

Some other news coverage of prior decisions that are apparently contravened by this mid December decision:

In November 2016, Honolulu's Star-Advertiser reported that 'biotech companies operating in Hawaii scored a major victory Friday when a federal appeals court threw out ordinances on Kauai, Hawaii island and Maui that banned or restricted the cultivation of genetically modified crops and sought greater regulation over pesticides.

Monsanto, Syngenta and other seed companies that farm in Hawaii won a significant victory after a federal appeals court ruled that counties can't regulate pesticides or genetically modified crops (in Hawaii's Civil Beat)

A federal judge has ruled that three Hawaii counties can't enact their own bans or regulations on genetically modified crops and pesticides, handing a victory to the major agriculture companies that fought the regulations. (Associated Press).

The 9th U.S. Circuit Court of Appeals on Friday ruled that three Hawaii counties cannot regulate genetically modified crops or pesticides. (Pacific Business News)

A partial ban on growing genetically modified crops in Hawaii County will remain invalid following a ruling Friday in the U.S. Court of Appeals. (Tribune-Herald)

A federal appeals court has sided with supporters of GMO, or genetically modified organisms, by affirming an earlier district court ruling in their favor (Big Island Video News)

Hawaii counties and cities don't have the authority to regulate genetically engineered crops and pesticide use, according to a decision handed down Friday from the U.S. Court of Appeals (Garden Island)

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Here are a couple of comments on these news stories, which don't reveal the names of the commenters:

"Unfortunately, my brother in law was a professor at Monsanto funded University of Hawaii in Honolulu and ran the lab there. - he wrote the white paper for Monsanto that advocated glyphosate was safe even at full strength levels. He has had three bouts of skin cancer. I continually lobby against all things not produced naturally in nature including isolates as well as chemical copies. Nature is biological and we are biological - and should be joined in the natural form.

another comment: The unsafe part isn't the "safe crop breeding technology", it's the cancer caused by the pesticides and herbicides those crops are engineered (not bred) to have sprayed all over them. Just ask the World Health Organization. Also, nobody spends more than GM companies to influence policy to make the food market unfair.

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In announcement the same day as the 9th Circuit Court of Appeals (December 14), the directors of Hawaii's Agriculture Department and Health Department detailed plans that they believe will allay concerns of residents about chemicals sprayed on crops -- not just on the Garden Island, but statewide.

The plans call for testing for pesticides in surface waters, improved inter-agency response when emergencies involving pesticides arise and greater efforts to share information with islanders, including posting more information online.

Agriculture Department Chair Scott Enright said his boss, Gov. David Ige, is "committed to public health and safety -- that is his first priority."

To this author, that statement is so absurd that if this were not such a serious matter, I would have to laugh....and for more bureaucratic claptrap:

Enright and Health Department officials stated that they have been taking "a closer look" at pesticide regulatory actions and the effect on the environment.

Ashley Lukens, director of the Hawaii Center for Food Safety, a critic of genetically modified farming and related pesticide use, said she was disappointed with Wednesday's announcement.

"I think that for the past four years the community has been demanding regulatory action, and what you see in this announcement is not about regulation, and these are the regulatory bodies that we have to protect our health and environment. All they continue to do is fail to use their powers."

But Agriculture's Enright and Health Department Director Virginia Pressler also reiterated the ultimate corporate double speak and misrepresentation:

"The point was that no environmental or public health problems linked to pesticides could be demonstrated so far."

Enright cautioned that he did not know what more data would reveal. He said his agency responded to concerns of Kauai residents by funding the fact-finding report, and that agencies would be partnering with the U.S. Geological Survey to sample surface water, where evidence of pesticide harm would be discovered.

Predictably, the Hawaii Crop Improvement Association, the lobbying group that represents local seed companies like Monsanto, Syngenta, Pioneer and Dow AgroSciences, welcomed the state's latest efforts.

"Hawaii's seed industry has been responsible stewards of Hawaii's natural resources for 50 years," said the association's executive director, Bennette Misalucha. "Their employees are farmers, neighbors, and parents who care about the well-being of their communities and the future of Hawaii. In addition to complying with applicable state and federal laws, the seed companies are committed to being good neighbors, and have therefore agreed to participate in the Department of Agriculture's new voluntary Good Neighbor Program."

From Stephen Fox: Just Peachy! Doesn't that just give you that reassured rosy glow?

Ashley Lukens, the food-safety advocate, said the state needs to do much more, and speaking to Hawaii's online news venue, the Civil Beat: "I think the medical literature is completely clear that pesticide exposure is bad for children's health, and it is incumbent upon the state to ensure that those health impacts are prevented," she said.

Lukens said she was not even allowed to attend the Agriculture and Health Secretary's press conference. A Health Department official said only news media representatives were allowed in.

From Stephen Fox: Get used to this kind of stranglehold and cloture over serious non-corporate journalists in the coming years....

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According to an article by Amy Martyn in Consumer Affairs:

"Attorneys for the food safety and environmental groups defending Kauai's ordinance had argued that companies like Syngenta could still do business in Kauai, even under the regulations. 'Ordinance 960 doesn't tell the plaintiffs or anybody else, you can't do business in Kauai County. You have to follow these disclosures and you have to have buffer zones,' Paul Achitoff, the attorney for EarthJustice, testified.

The attorney representing Syngenta countered with the argument that Kauai's self-protective ordinance should be struck down entirely. "Over and over again you see references to them -- to the council members saying, We don't want to hurt the local farmers, we don't want to get the little farmers. We just want to get the seed companies. And that's what they did, and they did it in ways that are in fact irrational," Paul Alston said in open court.

What this means in and for Kauai is quite unclear: Syngenta announced in September that it is planning to sell its 6,000 acres of land in Kauai and operate under contract with a different landowner in Hawaii. Syngenta is also reportedly in talks to be acquired by a Chinese chemical company for $43 billion.

A Hawaii protest march against Monsanto

How Roundup Corn is made

aerial photos of Hawaii islands with explanation of some of the suits