Posted on: Saturday, December 7, 2002

High court won't order tourism impact study

By David Waite
Advertiser Courts Writer

By a 3-2 vote, the Hawai'i Supreme Court yesterday rejected a bid by the Sierra Club's Hawai'i chapter to force the Hawai'i Tourism Authority to conduct an environmental assessment to gauge the potential effect of spending millions to attract more visitors here.

Associate Justices Mario Ramil and Simeon Acoba Jr. concluded the Sierra Club did not have "standing" or a legal basis to challenge the authority's decision not to do an assessment in conjunction with its vastly pumped-up marketing efforts.

Associate Justice Paula Nakayama agreed that an environmental assessment need not be done, but said the Sierra Club failed to show that "alleged adverse environmental impacts to land can be attributed to the expenditure of money on a marketing plan."

Chief Justice Ronald Moon and Associate Justice Steven Levinson dissented.

The Sierra Club suit filed in January 2000 was a response to the 1998 creation of the tourism authority and its groundbreaking tourism development plan that called for spending $60 million a year to attract higher-spending visitors. In the past, the state spent $25 million a year on tourism marketing.

An environmental assessment would determine whether the authority should conduct a more complete environmental impact statement on the effects of spending the money to attract tourists to Hawai'i.

The case marked the first time the Sierra Club sued a tourism agency. Other states and environmental groups had watched the case to see if it would set a precedent in the long struggle between the tourism industry and environmental groups.

Tony Vericella, president and chief executive of the Hawai'i Visitor & Convention Bureau, said the Sierra Club's concerns are being addressed in state studies that look at each island's tourism "carrying capacity" from social, cultural, environmental and economic perspectives.

The state's marketing efforts are aimed at increasing the number of tourists during traditionally slow periods, Vericella said.

Jeff Mikulina, director of the Sierra Club's Hawai'i chapter, said he is disappointed with the majority opinion. "They seem to be saying that increased tourist arrivals here won't result in any discernable impact on the environment," Mikulina said. "Anyone who goes to Hana-uma Bay knows that's not true."

In the dissent, Moon said fellow justices wrongly characterized the Sierra Club's "asserted injury as an injury to the environment."

"In actuality, the asserted injury in this case is the enhanced risk that Sierra Club's ... members will suffer (from) environmental harm due to HTA's failure to fulfill its alleged statutory responsibility to evaluate whether its marketing plan will have a 'significant effect' on the environment," Moon said.

Moon said the opinion by Ramil and Acoba is inconsistent with the state's environmental law, federal precedent on the issue "and this court's own precedent regarding standing in the context of environmental injury."