Environmental review remains a legal quagmire
By Jay Fidell
The argument over environmental review is one of Hawai'i's biggest legal battlefields. The primary weapon is HRS Chapter 343, the Hawai'i Environmental Protection Act. The Lingle administration has not provided leadership or funding for the agencies involved, and the implementation of 343 has suffered in the process.
Some recent cases have changed the landscape. Ohana Pale imposed 343 on top of other state requirements. In Superferry, the Legislature sought to avoid 343. And in Koa Ridge, the state Supreme Court extended the use of government land as a 343 "trigger." The latest issue, in Turtle Bay, involves the shelf life of a 343 document.
ASSIGNMENT TO UH
These cases were catalysts for Act 1 in 2008, in which the Legislature appropriated $300,000 to the University of Hawai'i to do a comprehensive report on how to fix 343. This is the first time in 20 years that 343 will have been revised.
Karl Kim of the Urban Planning Center, Denise Antolini of the law school and Peter Rappa of the environmental center are the principal investigators. They submitted a report to the Legislature in January, along with a proposed bill. This was introduced as SB 2185 and HB 2398.
Some environmental planners are disappointed with the report and don't think it will solve the problems in 343. They also feel that the UH team didn't sufficiently reach out to developers, landowners and affected industries. The investigators disagree. They say they interviewed 170 stakeholders, including 17 consulting firms, and had focus groups, a public meeting and a blog.
Under the bills, any "discretionary" permit would trigger an environmental assessment or impact statement. Opponents are concerned that "discretionary" would cover so many permits, even building permits, that the system could collapse. The investigators say this new trigger would only apply if the project has a "probable significant and adverse effect," which is a much narrower subset.
EA/EIS documents typically include mitigation measures. The bills require that those be conditions of approval for subsequent permits. Opponents point out that EA/EIS documents are only for disclosure, and project design typically evolves afterward and should not be hampered. The investigators say follow-up is important, and the bill only requires it "where applicable." They are trying to find language to clarify the ambiguity.
The bills pass the hard issues off to a reconfigured environmental council, and empower the council to make four-year "interim" rules without public hearings or gubernatorial review. This is ironic considering 343's public comment requirements. The investigators feel that because Lingle hasn't allowed rule changes, we need new rules right away. But really, four years is too long for "interim."
The bills provide that an EA/EIS document will be stale after seven years. If you haven't gotten all discretionary permits by then, you must do a supplemental EA/EIS. But opponents say you could easily wait seven years before you get those permits. The investigators say that the applicant only has to provide a supplemental report if there have been changes and that that report would only deal with those changes.
The bills also require the council to set page limits for EA/EIS documents. Opponents say this will make it difficult for applicants to address all the required issues. The investigators say they are trying to make the system less burdensome, and that page limits have worked in other jurisdictions.
The planners say the report is incomplete and that the bills should be deferred. They say the investigators didn't do what Act 1 required, and the bills would make the process slower and more costly, controversial and unpredictable.
"The development community has repeatedly offered to assist UH in completing this study, but we have been consistently rebuffed. We are still hoping to hear from them," said Lee Sichter of Belt Collins, a planning firm.
When the Senate Energy and Environment Committee heard the bill, David Arakawa of the Land Use Research Foundation and Robert Harris of the Sierra Club also asked for deferral.
The investigators recognize that there are concerns about some parts of the bill, but say other parts really can't wait, particularly those dealing with the environmental council. Perhaps the bill can be bifurcated so some parts pass now and others can be improved in the report they expect to file in June.
We can only agree that there are disagreements on how 343 should be tweaked and that there are polarized views on how it should be applied. In the words of Denise Antolini, "I wouldn't say kumbaya has happened just yet."