Win! Court orders Syngenta not Exempt from Environmental Review
Good news! This last week, the Intermediate Court of Appeals ruled that Syngenta’s West Kauaʻi experimental seed operations on public lands using restricted use pesticides are not exempt from environmental review.
Check out the recent coverage on Hawaiʻi News Now!
A hui of Kauaʻi community groups including HAPA, Surfrider Foundation, Ke Kauhulu O Mānā, Koholā Leo, and Native Hawaiian cultural practitioners, including Punohu Kekaualua, filed suit against the DLNR and Syngenta in 2017 challenging the DLNR's exemption of Syngenta's use of Mānā lands for its seed operation from required environmental review. Of particular concern to the groups was the heavy application of restricted use pesticides on the sensitive, coastal, public-owned lands zoned for conservation.
In 2018, the Fifth Circuit ruled that the DLNR's granting of an exemption from environmental review was appropriate. The Intermediate Court of Appeals reversed that determination and has ordered the matter be returned to the Fifth Circuit for further proceedings.
The lands are now used by Hartung, a company that conducts similar seed corn experiments.
Community members have long been concerned about the potential health impacts of the agrochemical industry due to the large footprint this industry occupies, especially on the westside of Kauaʻi. West Kauaʻi resident and fellow plaintiff Punohu Kekaualua states:
“Our lands have been abused and poisoned by these corporate entities. In return, our offspring are born with defects found in abnormal chromosomal microarray results. I, Punohu Kekaualua, am a father of 5 beautifully unique children who have been dealt an unfair hand of medical & mental health challenges. Our keiki are faced with a lifetime of obstacles due to environmental exposures.”
The agrochemical industry’s practices in Hawaiʻi have largely evaded any meaningful environmental assessment. The parcel under consideration in this lawsuit represents just a small fraction of the pesticide use along the coastal Mānā plain in West Kauaʻi. Of the approximately 13k acres of public trust agricultural lands under the purview of the Agribusiness Development Corporation (ADC) adjacent to this public parcel, the majority of lands leased are occupied by agrochemical tenants. This is the largest concentration of agrochemical fields in Hawaiʻi. Therefore, the breadth of agrochemical tenants along a sensitive coastal area raises valid concerns about the potential for off-target pesticide drift or run-off from nearby test fields into nearshore fisheries and recreational areas such as Mānā Drag Strip and Polihale State Park. In fact, the Mānā Drag strip, partially located on the same parcel, is less than 250 feet from where RUP’s are applied.
Public parcel under consideration in Mānā, West Kauaʻi
Nearby agrochemical fields in Mānā on public lands under ADC purview
From our analysis of 2019 RUP usage data for this parcel we know that:
over 50 lbs of active (RUP) ingredient* were applied to this parcel in 2019
This included application of 11 different products with 8 active ingredients
66 applications over the course of 2019 (applications approx. every 5-6 days)
Of those 8 active ingredients applied:
7 are toxic to aquatic life
6 are toxic to bees
At least 3 are water contaminants
7 are (or are possible) endocrine disruptors
4 are (or are possible) carcinogens
One major caveat and challenge with the RUP data listed above is that Hawaiʻi has a limited amount of pesticides currently classified as RUP’s. Hawaiʻi users of pesticides are only required to report on RUP use, not those that are considered “general use”. RUP’s classification is for pesticides that have more severe toxicity and RUP’s can only be purchased and applied by certified applicators. However, what gets classified as restricted varies from state to state. For example, California has three times the amount of pesticides classified as RUP’s than that of Hawaiʻi. So the data above is limited to what is publicly available, but does not include all the general use pesticides that may be used on the parcel as well.
A huge mahalo to our amazing lawyers Lance D. Collins and Bianca Isaki as well as our fellow plaintiff’s.
* Active ingredient refers to the portion of chemicals within a whole formulation that target the pest. The whole formulation also includes so-called “inert ingredients”. For example some of these “inert ingredients” increase the adherence of the chemicals to their target. It is important to note that the public health and environmental impacts of these so-called “inert ingredients” has never been studied.
