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The Honolulu Advertiser
Posted on: Sunday, January 20, 2008

Chamber urging review law exemption

 •  Legislature 2008
 •  Agendas start getting under way at the Capitol

By Derrick DePledge
Advertiser Government Writer

The Chamber of Commerce of Hawai'i, concerned about what it describes as the unintended consequences of the state Supreme Court's ruling on Hawaii Superferry, is asking state lawmakers to exempt the use of state or county road right-of-ways as a trigger for environmental assessments.

The chamber, along with the Building Industry Association of Hawai'i and other development interests, is citing examples where relatively minor projects may now be saddled with costly and time-consuming environmental assessments because they touch state or county roads.

While the examples are anecdotal a Big Island prep school that may have to do an environmental assessment to expand an intersection for a second campus access; a new Ma'ili self-storage facility that may have to do a review for a driveway and waterline they are getting through to lawmakers.

State House and Senate Democratic leaders had told their caucuses before session that they would not support piecemeal changes to the state's three-decade-old environmental review law that were inevitably going to be proposed after the court's Superferry ruling. Democratic leaders have instead called for a comprehensive review of the law as part of their joint majority package released Friday.

The review was one prong in a package of bills that focuses on the University of Hawai'i repair and maintenance backlog, affordable housing, and energy and the environment. Gov. Linda Lingle is scheduled to detail her priorities for the session in her State of the State speech on Tuesday.

Several lawmakers said the Chamber of Commerce is making a persuasive argument that perhaps a narrow exemption to the environmental review law is necessary, at least until a comprehensive review is completed. Lawmakers, including some who had demanded an environmental assessment of Superferry long before the Supreme Court ruling required it last August, said it was not the Legislature's intent for the law to trip up minor projects.

"I think it's a reasonable request," said state Sen. J. Kalani English, D-6th (E. Maui, Moloka'i, Lana'i), the chairman of the Senate Transportation and International Affairs Committee. "It's not the original intent of the law."

State Rep. Hermina Morita, D-14th (Hanalei, Anahola, Kapa'a), the chairwoman of the House Energy and Environmental Protection Committee, said it does not make sense to her to require environmental assessments on otherwise permitted projects solely because they touch state roads.

"We recognize that the law needs to be updated," she said.


But like many public-policy issues that have arisen related to Superferry, lawmakers are also interested in timing and motive.

The state Department of Transportation, responding to two previous Supreme Court rulings, asked the state Environmental Council early last year to generally exempt the private construction of driveways or the installation of utilities within state road right-of-ways from environmental assessments. The Supreme Court, in a 1997 decision involving the Kahana Sunset project on Maui and in a 2006 decision on the Koa Ridge project in Waiawa, found that projects that touch state road right-of-ways technically use state lands and trigger potential environmental assessments.

The Environmental Council, which advises the state on the environmental review law, responded that the Legislature would have to make such an exemption to the law. So the state Department of Transportation told counties last May that it would be interpreting the law based on the court's guidance until the issue was resolved.

Henry Curtis, executive director of Life of the Land, an environmental group, said developers had wanted out from under the Kahana Sunset and Koa Ridge rulings well before the court's Superferry decision. A chronology on the issue circulated by the chamber mentions the Kahana Sunset and Koa Ridge cases but not Superferry, although the chamber's legislative agenda refers to the details of the court's ruling.

Curtis said that while the environmental review law needs to be reassessed and the chamber's request might appear reasonable until such a review is completed, it could end up exempting projects that should be required to do environmental assessments.

"There could be unintended consequences of putting on this Band-Aid," Curtis said.

John Harrison, the former environmental coordinator at the University of Hawai'i-Manoa's Environmental Center, said "tinkering around at the margins of the law is going to probably do more damage than good."

The chamber, he believes, is "trying to blow some smoke around."

Two years ago, the Legislature authorized a review of the law and Harrison and others began the work but had to stop after the Lingle administration did not release the money. The administration later explained that it had inadvertently allowed the money to lapse.

State Senate Majority Leader Gary Hooser, D-7th (Kaua'i, Ni'ihau), and state House Majority Leader Kirk Caldwell, D-24th (Manoa), both said that had the review gone forward it could have already provided background to help lawmakers amend the law or given lawmakers more information during the Superferry debate.

"This is an administration-driven policy decision to interpret and enforce (the environmental review law) in this way," Hooser said. "The administration created it and the administration should solve it."

Caldwell said lawmakers have been hearing complaints from development interests. "We're getting feedback from every island," he said. "This really is a continuation of the Superferry saga."


The Supreme Court found in August that the state failed to consider the secondary and cumulative impacts of Superferry when it exempted $40 million in ferry-related state harbor improvements from an environmental assessment. The court's decision cited the previous opinion in Kahana Sunset, among others.

After the ruling, the state agreed to order a full environmental impact statement for Superferry and the Legislature and governor agreed after a special session to allow ferry service to resume while the study is being conducted.

In October, according to the chamber's chronology, Big Island county planners started using the Superferry ruling and the state Department of Transportation's May interpretation of the law as guidance for new development projects.

Jim Tollefson, the chamber's president, said the issue is one of the chamber's legislative priorities for the session. He said smaller landowners and businesses in particular are having trouble with how the law is being interpreted. "It's holding up projects and time is money," he said. "Smaller companies are incurring additional costs to comply with this."

Dean Uchida, vice president of the Ho'opili project on the 'Ewa Plain for the Schuler Division of D.R. Horton, described the exemption as "a quick fix to solve the unintended consequences."

Uchida said developers would likely be making the same request even if the Superferry ruling never happened because of the Kahana Sunset and Koa Ridge precedents.

"What's happening is it's catching the small projects. Because the big guys, like Castle & Cooke or even our project, we're going to be doing an EIS anyway. So it's not like that interpretation is going to affect us," said Uchida, the former executive director of the Land Use Research Foundation of Hawai'i.

"It's crazy. The law was never intended to be an 'everyone has to do an EA kind of thing,' which is what it is turning out to be because almost every project is going to touch a state or county road at some point."

Reach Derrick DePledge at ddepledge@honoluluadvertiser.com.