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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
<br /> must be deemed to be the date that the subdivision application was approved as opposed to when the project itself was originally approved.Indeed,any other interpretation
<br /> would be absurd,especially where—as here—the original project was approved over twenty years ago and is not even near completion.See County of Hawaii v,C&J
<br /> Coupe Family Ltd.P'ship,119 Hawaii 352,362,198 P.3d 615,625(2008).(recognizing that"[t]he canons of statutory construction also require this court'to construe statutes
<br /> ....
<br /> so as to avoid absurd results"')(citation omitted).
<br /> Moreover,HAR§11-200-2 defines"supplemental statement"as"an additional environmental impact statement prepared for an action for which a statement was previously
<br /> accepted,but which has since changed substantively in size,scope,intensity,use,location,or timing,among other things."Thus,the administrative rules promulgated to
<br /> further the purpose and intent of HEPA clearly contemplate the possibility of changes to the original project that may dictate the need for a further environmental impact
<br /> assessment,i.e.,a SEIS.Consequently,it would be absurd to decide statute of limitation issues related to a determination whether a SEIS is required or not required based
<br /> upon the date of the original project or action because common sense dictates that,in all likelihood,the issue of a supplemental assessment would not arise within 120 days of
<br /> acceptance of the original EIS or the start of the original project.If such determinations were based on the original project,a great majority of,if not all,judicial proceedings
<br /> challenging the SEIS process would be dismissed as untimely.As indicated above,such a result would be absurd.
<br /> Here,DPP tentatively approved Kuilima's November 8,2005 subdivision application on September 29,2006.Thus,at minimum,plaintiffs'complaint was required to be filed
<br /> within 120 days thereof,or by February 5,2007.The plaintiffs'initial complaint was filed on May 19,2006 and their first amended complaint was filed on June 7,2006,well
<br /> before the limitations period even began to run.Furthermore,even if DPP's January 19,2006 letter to Shafer,indicating that Kuilima was"entitled to proceed with the project
<br /> as approved"constitutes"approval"under this section,the plaintiffs'initial complaint(filed May 19,2006)was still timely,i.e.,120 days from January 19,2006 is May 19,2006.
<br /> Thus,Kuilima's argument that the plaintiffs'claims are barred by the statute of limitations is without merit.
<br /> B. Environmental Council's Authority to Promulgate HEPA Rules
<br /> As previously indicated,the ICA majority did not address Kuilima's argument that the Environmental Council exceeded its statutory authority in promulgating HAR§§11-200-
<br /> 26 and 11-200-27 and"accordingly[,]no cause of action exist[ed]to require Kuilima to prepare a[]SEIS."However,Kuilima reasserts such argument before this court.
<br /> 448 *44s Article XI,section 1 of the Hawaii State Constitution mandates environmental protection,stating:
<br /> For the benefit of present and future generations,the State and its political subdivisions shall conserve and protect Hawaii's natural beauty and all natural
<br /> resources,including land,water,air,minerals and energy sources,and shall promote the development and utilization of these resources in a manner consistent
<br /> with their conservation and in furtherance of the self-sufficiency of the State.
<br /> All public natural resources are held in trust by the State for the benefit of the people.
<br /> To facilitate this constitutional mandate,HEPAwas enacted in 1974"to establish a system of environmental review which[would]ensure that environmental concerns are
<br /> given appropriate consideration in decision making along with economic and technical considerations."HRS§343-1.In keeping with this system of environmental review,
<br /> HEPA requires that an EIS be prepared"if[an]agency finds that the proposed action may have a significant effect on the environment."HRS§343-5(b)(Supp.2005).
<br /> The Environmental CouncilU is charged,pursuant to HRS§343-6(1993),quoted infra,with the task of promulgating rules to further the purpose of HEPA.In fulfilling its
<br /> statutory responsibility,the Environmental Council promulgated HAR title 11,chapter 200 that sets forth the"system of environmental review at the state and county levels"
<br /> which"provide[s]agencies and persons with procedures,specifications of contents of environmental assessments and environmental impact statements,and criteria and
<br /> definitions of statewide application."HAR§11-200-1.
<br /> Kuilima argues that the Environmental Council exceeded its statutory authority in promulgating HAR§§11-200-26 and 11-200-27.More specifically,Kuilima argues that
<br /> adopting the plaintiffs'interpretation of HEPAwould"exceed the enabling legislation of HEPA"by"caus[ing]HAR§§11-200-2[(the definition section)],11-200-26,and 11-200-
<br /> 27 to contravene HRS§343-5(g),which states that"[a]statement that is accepted with respect to a particular action shall satisfy the requirements of this chapter and no other
<br /> statement for that proposed action shall be required."We cannot agree with Kuilima.
<br /> First,we recognize that HRS§343-2(Supp.2005)equates the term"statement"with an EIS.!Zt!We also recognize that section 343-5(g)limits the number of original EISs
<br /> under HEPA,but does not specifically proscribe SEISs.
<br /> Further,HRS§343-6 states that:
<br /> (a)After consultation with the affected agencies,the[Environmental C]ouncil shall adopt,amend,or repeal necessary rules for the purposes of this chapter in
<br /> accordance with chapter 91 [(entitled,"Administrative Procedure")]including,but not limited to,rules which shall:
<br /> (1)Prescribe the contents of an[EIS];
<br /> (2)Prescribe the procedures whereby a group of proposed actions may be treated by a single statement;
<br /> (3)Prescribe procedures for the preparation and contents of an environmental assessment;
<br /> 449 *449(4)Prescribe procedures for the submission,distribution,review,acceptance or nonacceptance,and withdrawal of a statement;
<br /> (5)Prescribe procedures to appeal the nonacceptance of a statement to the environmental council;
<br /> (6)Establish criteria to determine whether a statement is acceptable or not;
<br /> (7)Establish procedures whereby specific types of actions,because they will probably have minimal or no significant effects on the environment,are declared
<br /> exempt from the preparation of an assessment;
<br /> (8)Prescribe procedures for informing the public of determinations that a statement is either required or not required,for informing the public of the availability of
<br /> draft statements for review and comments,and for informing the public of the acceptance or nonacceptance of the final statement;and
<br /> (9)Prescribe the contents of an environmental assessment.
<br /> (Emphases added).
<br /> The plain language of HRS§343-6 clearly authorizes the Environmental Council to promulgate rules that,at minimum,address the nine categories enumerated therein.This
<br /> court has stated that
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