2024-03-06 PL-SMA-2023-000046 Claudia Rohr Opposition Testimony (2)

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3/6/24, 12:06 PM Unite Here!Local 5 v.City and Cty.of Honolulu,231 P.3d 423-Haw: Supreme Court 2010-Google Scholar 8.The law provides that when you have a project that is to be constructed in phases,the original EIS covers everything,and the project is the action under consideration.In this case,the[p]roject is the"action."There has been no change to the action that would essentially make it a new action underconsideration. [COLS] 1.The law provides that courts are supposed to give deference to the expertise of agencies that deal with administrative issues.The[circuit court is not to substitute its judgment for the judgment of an agency.If the decision of the agency meets the"rule of reason"and the decision is not"arbitrary or capricious,"the [circuit c]ourt shall not substitute its judgment for that of the agency. 2.The DPP's decision that a[SEIS]is not required for the[p]roject meets the rule of reason standard[]and was not arbitrary or capricious. The timing of the [p]roject has not substantively,or essentially,changed.In the alternative,even if the timing had substantively changed,which the[circuit c]ourt finds that it has not,such change is not likely to have a significant effect. 3.[The p]laintiffs'concerns that form the basis of their claims in this litigation were basically expressed for the first time in the filings before this[c]ourt.However, 441 even if the[circuit c]ourt were to review those concerns,the[circuit c]ourt would not find that there is a substantive change likely to result in a significant effect not *441 originally considered or previously dealt with that would require ap SEIS. (Emphases added.) On June 4,2007,the circuit court entered its amended final judgmentl9l in favor of the defendants and against the plaintiffs on all of the plaintiffs'claims set forth in their first amended complaint.The plaintiffs filed a timely notice of appeal on June 19,2007. C. Appeal Before the ICA On direct appeal,the plaintiffs contended that the circuit court erred in(1)granting the defendants'third motion for summary judgment and(2)denying the plaintiffs'cross- motion for summary judgment.The plaintiffs argued,as they did before the circuit court,that a SEIS is required in this case because the timing of the project has substantially changed.Specifically,they argued that"the 1985 EIS and 1985[t]raffic[r]eport[we]re outdated'and'[could not]be relied upon to properly disclose,analyze,and mitigate the significant local and regional...impacts of the[project]."More specifically,the plaintiffs argued,inter alia,that they were entitled to judgment as a matter of law because"HEPA applie[d]to[Kuilima]'s application for a preliminary subdivision,"and,thus,DPP had"an obligation,implied in HEPA and express in[HAR§§11-200-26 and 11-200-27]"to make an"independent determination'whether new circumstances and evidence require[d]a SEIS."The plaintiffs additionally contended that,inasmuch as the DPP did not take a"hard look"at whether"new circumstances or evidence have brought to light different or likely increased environmental impacts[from the project]not previously dealt with,"its decision was not in accordance with the"rule of reason,"i.e.,it was arbitrary and capricious.11o] In response,the defendants argued that a SEIS was not required for the project because"[the]plaintiffs misinterpret[ed]and misappl[ied]the SEIS rules[]and have not met their burden"of showing a substantive change in the"project itself."Additionally,Kuilima argued that,in any event:(1)"[the]plaintiffs'claims[were]time-barred under HRS§ 343-7,"quoted infra;(2)the Environmental Council exceeded its statutory authority in promulgating HAIR§§11-200-26 and 11-200-27 and,"accordingly[,]no cause of action exist[ed]to require Kuilima to prepare a[]SEIS";(3)Kuilima's subdivision application was not an"action'under HEPA"and,thus,did not"trigger[DPP's]obligation to determine if a[]SEIS should be required."t111 Finally,the defendants contended that DPP did,in fact,take a"hard look"at the project and,thus,its decision was not arbitrary and capricious. 1. The ICA Majority The ICA issued its published opinion on May 22,2009,and,as discussed more fully infra,a majority of the court concluded that,pursuant to HAIR§11-200-26,1121"the DPP is required to conduct a two-step inquiry to determine whether a[]SEIS is required,"Unite Here!,120 Hawaii at 465,209 P.3d at 1279,specifically: 442 *442(1)Whether the action(the[p]roject)has changed substantively in size,scope,intensity,use,location or timing?And if so, (2)Will the change in any of these characteristics likely have a significant effect and result in individual or cumulative impacts not originally disclosed in the EIS? Id.(emphases in original).With respect to the two-part inquiry,the ICA reasoned that: If the DPP answers the first question in the negative,no further inquiry is necessary as"no other statement[for the[p]roject]will be required."If the DPP answers the first question in the affirmative(i.e.,finding there is a substantive change in one of the aforementioned characteristics),then the DPP is required to determine whether the change will likely have a"significant effect"and result in"individual or cumulative impacts not originally disclosed"in the original EIS. Id.(citations omitted)(some brackets in original).In other words,the ICA majority determined that"there must be a substantive change in the action(the[p]roject)before a[] SEIS is to be considered."Id.(emphasis in original).The ICA concluded that:(1)"[t]he[1985 EIS]detailed only an approximate phasing of the development for the resort[,] id.at 466,209 Rid at 1280;(2)"[n]either the[1985]EIS nor the governmental entities imposed a timing condition[,]"id.;and(3)"there was no substantial change in the [p]roject."Id.The ICA also concluded that a SEIS was not required because the subdivision application did not constitute an"action"under HEPA and that,therefore,the 1985 EIS"covered the entire[p]roject,including the[s]ubdivision[a]pplication."Id.at 467,209 R3d at 1281.Consequently,the ICA affirmed the circuit court's amended final judgment in favor of the defendants.Id.The ICA did not specifically address Kuilima's contentions that the plaintiffs'claims were time-barred under HRS§343-7 or that subdivision application was exempt from HEPA;nor did it review the defendants'contention that the Environmental Council exceeded its statutory authority in promulgating HAIR§§11-200-26 and 11-200-27. 2. The ICA Dissent The dissent agreed with the plaintiffs'interpretation of HEPA and HAIR§§11-200-26 and 11-200-27,1?3]concluding that a SEIS is required when significant changes to the anticipated environmental impacts of a proposed action become apparent such that"an essentially different action"is being proposed.Significant changes to the anticipated environmental impacts of a development project can arise from changes to the design of the project itself, changes to conditions surrounding the project,or the discovery of new information.In my view,[HEPA and its rules]do not restrict the responsible agency by only permitting it to consider changes to a project's anticipated environmental impacts when the design of a project itself has changed.Rather,in determining whether a[]SEIS is warranted,...the agency is authorized to consider not only the potential effects of design changes to the project,but whether changes to the conditions surrounding the project and newly discovered information may significantly affect the project's anticipated environmental impacts. https://scholar.google.com/scholar_case?case=4308700817237546533&q=unite+here+local+5&hl=en&as_sdt=2006 9/17