Hawaii environmental law being reshaped in private talks
By Dan Nakaso
Advertiser Staff Writer
A group of builders, environmental groups, lawyers and public agencies and institutions has been quietly meeting in private to help shape the first overhaul of Hawai'i's environmental laws in 40 years, even as lawmakers hold public hearings on a bill that is likely to go nowhere this session.
In public, many of the people affected by Senate Bill 2818 have testified against the details of the measure — while simultaneously meeting in private to find consensus that will lay the groundwork for new legislation, most likely in the next legislative session.
The members of the so-called "environmental review working group" formed in response to SB 2818 have signed confidentiality agreements, use a professional facilitator who helps guide their discussions and have since broken up into smaller subgroups that have their own meetings.
The Outdoor Circle is not part of the working group, so its director of environmental programs, Bob Loy, can only testify in public hearings in favor of SB 2818, with some reservations.
"Those of us who have invested a lot of time, energy and money into the process don't know what's going on," Loy said. "We're moving along with this open legislative process and we're reading rewrites and new drafts of bills and going into the next legislative committee to testify. At the same time, we know there's stuff going on in the backrooms that makes what's going on in the front rooms worthless."
The state Capitol has a long history of political opponents meeting privately to hammer out legislative language, then suggest new consensus language to key lawmakers that ends up as law.
And although the concept of working groups dates to at least 2006, the idea of formal meeting times, agendas and confidentiality agreements for the groups' members over issues of great public interest has raised eyebrows among people who regularly participate in public hearings.
However, the state Office of Information Practices that administers Hawai'i's open records law and the Uniform Information Practices Act said the concept of working groups complies with statutory requirements.
And proponents of working groups emphasize that the groups' recommendations are always ultimately heard in public and voted on by legislators.
They also say that working groups are the best vehicle to reach consensus on highly contentious issues such as Hawai'i's environmental review process, which has played a direct — or indirect — role in derailing high-profile projects such as the Hawaii Superferry and the $350 million Hokuli'a development on the Big Island, while fueling the Islands' reputation as a hostile place to do business.
SB 2818 is designed to streamline the Islands' environmental review process and make it more efficient and consistent.
But proponents and opponents argue over whether the bill would actually create a better process or make it more confusing — while failing to protect native species.
Since Feb. 1, the nine members of the environmental review working group have met twice a week, along with additional subgroup meetings.
They represent the University of Hawai'i, which prepared a report that looks at overhauling Hawai'i's environmental review process; the state Health Department's Office of Environmental Quality Control; state Health Department's Environmental Council; the Building Industry Association, a private trade organization; Earthjustice, a nonprofit public interest law firm; Belt Collins, an international planning, design and consulting firm; The Nature Conservancy, an international conservation organization; the Land Use Research Foundation of Hawai'i, a statewide, private, nonprofit research and trade association of major Hawai'i landowners and developers; and the Sierra Club, a volunteer-run environmental organization.
Representatives of some of the organizations in the working group declined to be quoted — or even be interviewed for background — because of their confidentiality agreements.
State Sen. Mike Gabbard, D-19th (Kapolei, Makakilo, Waikele), chairs the Senate's Energy and Environment Committee and created the environmental review working group when the first public hearing on SB 2818 dissolved into "opposition from all sides," he said. "Everybody was against it."
Gabbard emphasized that any recommendations that come out of the environmental review working group will be fully aired before lawmakers.
"We're attempting to overhaul Hawai'i's broken environmental review system," Gabbard said. "It would be chaos if we tried to do this in public. I'm all for sunshine and keeping everybody in the know. But I thought this was the best way to find consensus on something of this importance that affects so many people."
It's not the first time Gabbard has used special working groups to deal with complex issues.
Gabbard created a "gas variance working group" in February 2009 over the issue of solar water heating tax credits. The group included representatives from the state Public Utilities Commission; state Department of Business, Economic Development and Tourism; state Department of Taxation; the Gas Co.; Hawaiian Electric Co.; and the solar industry.
In the end, the group reached unanimous consensus on the tax credits, but not on the issue of the gas variance.
This February, Gabbard created a "biofuels tax credit working group" over SB 2232 that has a DBEDT representative serving as "referee/mediator," Gabbard said.
The members represent ethanol producer Pacific West Energy, Hawaii Bioenergy, the Hawaii Renewable Energy Association and Hawaii Biodiesel.
"The group arrived at unanimous consensus on recommendations to divide up the tax credit limits — $9 million for ethanol and $3 million for other biofuels," Gabbard wrote in an e-mail.
" ... These working groups do not have any authority or power to make laws or even rules. They function simply to develop recommendations to propose to the Legislature. Their recommendations are not binding on the Legislature. The Legislature is free to adopt, reject or modify the recommendations of any of these working groups."
Jennifer Brooks, a staff attorney at the state Office of Information Practices, had never heard of the term "working group" at the Capitol until she was contacted by The Advertiser, but said the idea seems to conform with state law.
"The basic concept of legislators asking interested parties to work together and come up with a compromise on a bill — we've seen that," Brooks said. "But, no, I haven't heard the term 'working groups,' let alone where they work with a facilitator and sign confidentiality agreements."
Generally speaking, Brooks said, "the Legislature has its own rules for openness and hearings and is not subject to the sunshine law. From OIP's perspective, because they're not subject to the sunshine law, they will try to get people to work together outside of a hearing and get people to reach consensus on language. So these groups would not be subject to the sunshine law."
Gabbard has sat in on some of the discussions of the environmental review working group and is happy with what he's seen and heard.
"It's such a complex issue," Gabbard said in an interview. "So when you see an environmentalist on one side and a landowner on the other side agreeing with each other, it really gives me a good feeling about this group."
Gabbard got the idea for working groups while serving as vice chairman of the Senate's transportation committee, which is chaired by Sen. J. Kalani English, D-6th, (East Maui, Moloka'i, Lāna'i).
English had created a working group over the potential renaming of Fort Barrette Road in Kapolei.
"Hawaiian civic clubs wanted to rename Fort Barrette after a Hawaiian name," English said. "People from the military came in and wanted the name to remain. Both have valid histories but you can't ask us to choose between both histories. So they resolved their differences."
The result is that the name Fort Barrette Road remains but the nearby, newly reopened North-South Road is now called Kualaka'i Parkway.
"And now both sides understand each other's histories more," English said. "This is how a lot of the international community operates."
From 1991 through 1994, English served as an adviser to the ambassador of the Federated States of Micronesia at the United Nations in New York, where he saw the working group concept in action.
English imported the idea to the Hawai'i Capitol in 2006 as chairman of the Senate energy committee that was looking at bills that "laid the groundwork for renewable energy."
"Do people feel comfortable saying what they really feel in a public forum?" English asked. "My experience has been that they have a prepared statement that they read and then they talk to you on the side and say, 'This is what we really mean.' "
Like Gabbard, English emphasized that any working group recommendations are heard in public and must be approved by lawmakers.
"We've actually expanded democracy and strengthened democracy at a time when democracy is quickly vanishing," English said. "The public only sees the negotiations that fail. But the vast majority of them work. And I've seen many wars averted using this."