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 [a]public administrative agency possesses only such rule-making authority as is delegated to it by the state legislature and may only exercise this power within the framework of the statute under which it is conferred.Administrative rules and regulations which exceed the scope of the statutory enactment they were devised to implement are invalid and must be struck down. Haole v.State,111 Hawaii 144,152,140 P.3d 377,385(2006).(citations omitted)(brackets in original).In other words, an administrative agency can only wield powers expressly or implicitly granted to it by statute.However,it is well established that an administrative agency's authority includes those implied powers that are reasonably necessary to carry out the powers expressly granted.The reason for implied powers is that,as a practical matter,the legislature cannot foresee all the problems incidental to carrying out the duties and responsibilities of the agency. Id.(emphasis in original)(citation omitted).Here,the rule-making authority expressly grants to the Environmental Council the power to promulgate rules regarding EISs. However,to further the purpose and intent of HEPA,the Council,as discussed supra,clearly contemplated the possibility of changes to the original project that may dictate the need for a further environmental impact assessment,i.e.,a SEIS.Thus,the rules promulgated to address SEISs,including HAIR§§11-200-26 and 11-200-27,are clearly within the"implied powers that are reasonably necessary to carry out the powers expressly granted." Moreover,the SEIS process established by the Environmental Council is consistent with HEPA and its objectives—i.e.,"environmental consciousness is enhanced, cooperation and coordination are encouraged,and public participation during the review process benefits all parties involved and society as a whole,"HRS§343-1—and furthers environmental review.Consequently,we hold that the Environmental Council did not exceed its authority in promulgating rules to guide the SEIS process,including HAIR§§11-200-26 and 11-200-27. C. Requirement that Kuilima Complete a SEIS With respect to the plaintiffs'arguments regarding the timing of the project,the ICA stated that: Plaintiffs'only allegation in the circuit court of a"change"in the[p]roject was an alleged change in"timing."Plaintiffs argue that increased traffic,other planned developments near the[p]roject,and the existence of endangered or threatened species constitute"new circumstances or evidence."However,these are not substantive changes in the[p]roject. 450 When asked what information they had about changes in the[p]roject,each of[p]laintiffs'deposition witnesses admitted'450 they had no personal knowledge or evidence of changes in the[p]roject,with the exception of their claim regarding timing. Unite Here_,120 Hawaii at 466,209 P.3d at 1280(emphasis added).The ICA went on to determine that"[t]he[1985]EIS detailed only an approximate phasing of the development for the resort[,]"'and that"[n]either the[1985]EIS nor the governmental entities imposed a timing condition"and ultimately concluded that"[t]he record in this case demonstrates there was no substantial change in the[p]roject,"including a change with respect to timing.Id. The plaintiffs argue before this court that,because:(1)"[t]he EIS's impact analysis relied on basic assumptions about the project's timing by incorporating construction projections in three phases"and(2)twenty-four years have passed since the 1985 EIS was approved,there has been a change in the project's timing such that there is"an essentially different action...under consideration."HAR§11-200-26.In its response,Kuilima contends that a different action is not under consideration because"the[p]roject ...was not qualified by timing"inasmuch as"[t]he phasing plan for the[p]roject contemplated only a general and approximate plan for development"and"the[u]nilateral [a]greement...contemplated a reasonable and flexible schedule."Further,Kuilima argues that,"[e]ven if this[c]ourt concludes that[plaintiffs]have shown a change in the timing of the[p]roject,'the[plaintiffs]have failed to connect any new or different significant effect resulting from'that alleged change that was not originally disclosed or previously dealt with"in the 1985 EIS. HAIR§11-200-26 states that: A statement that is accepted with respect to a particular action is usually qualified by the size,scope,location,intensity,use,and timing of the action,among other things.A statement that is accepted with respect to a particular action shall satisfy the requirements of this chapter and no other statement for that proposed action shall be required,to the extent that the action has not changed substantively in size,scope,intensity,use,location,or timing,among other things.If there is any change in any of these characteristics which may have a significant effect,the original statement that was changed shall no longer be valid because an essentially different action would be under consideration and a supplemental statement shall be prepared and reviewed as provided by this chapter.As long as there is not change in a proposed action resulting in individual or cumulative impacts not originally disclosed,the statement associated with that action shall be deemed to comply with this chapter. (Emphases added).This court has stated that'[t]he fundamental starting point for statutory interpretation is the language of the statute itself....[W]here the statutory language is plain and unambiguous,[the courts]sole duty is to give effect to its plain and obvious meaning."Awakuni,115 Hawaii at 133,165 P.3d at 1034.The same general principles that apply to statutory interpretation also apply to interpretation of administrative rules.Allstate Ins.Co.,105 Hawaii at 454,99 P.3d at 105. Based on the plain language of subsection 26,every EIS is inherently"qualified,"or limited,by,inter alia,"the timing of the action,"i.e.,some sort of time frame.As the plaintiffs recognized,failing to consider the timing of a project,among other things, guts environmental review because certainly no one would argue that...we don't know how big this project is going to be,we don't know how much density there's going to be on this project,we don't know exactly where on the property this project is going to be located.All of those things need to be set out[i]n an EIS. We agree.For an EIS to meet its intended purpose,it must assess a particular project at a given location based on an explicit or implicit time frame. Here,the 1985 EIS explicitly described the scope of the project and centered its analysis on the size,location,intensity,and use of Kuilima's expansion.The 1985 EIS also 451 specifically referenced the"phasing and timing of the action,"stating that the"Phase I designation generally indicates a 1986 start*451 of construction date,Phase II, commencement between 1988 to 1989,and Phase III,[c]ommencement between 1993 to 1996."Although the phasing projections were"flexible,"such projections indicate that the 1985 EIS was subject to an implied timing condition or time frame,especially in light of the plain language of HAIR§11-200-26 identifying timing as a consideration. The record in the instant case indicates that the EIS was based on and limited to data available in 1985 and projected through 2000.As a result,the 1985 EIS addressed only the environmental impacts of the project within that time frame.For example,the evidence in the record indicates that:(1)traffic studies analyzed traffic impact projections through 2000;(2)visitor units,hotel demand,and population growth were also projected and analyzed only through 2000;and(3)monk seal populations were nearly non- existent in the project area at the time and,thus,were not even considered in the 1985 EIS. Inasmuch as:(1)over twenty years have passed since the approval of the 1985 EIS;(2)the evidence demonstrates that environmental impacts were examined only through 2000;and(3)the project is not yet completed,we conclude that the project,although unchanged in terms of size,scope,location,intensity,and use,is—due to the change in https://scholar.google.com/scholar_case?case=4308700817237546533&q=unite+here+local+5&hl=en&as_sdt=2006 13/17