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 timing—an"essentially different action,"HAIR§11-200-26,thereby rendering"the original statement...no longer...valid."Id.Consequently,contrary to the ICA-majority's opinion,a SEIS may be required and,thus,next examine whether a change in timing"may have a significant effect."See HAR§11-200-26. This court has recently stated that the phrase"may have a significant effect"as used in HEPA means"whether the proposed action will'likely'have a significant effect on the environment."Kepo'o v.Kane,106 Hawaii 270,289,103 P.3d 939,958(2005)(construing HRS§343-5(c)),[22!Further,the United States Court of Appeals far the Ninth Circuit has held that,under the aforementioned standard,plaintiffs"need not show that significant effects will in fact occur"but instead need only"raise[]substantial questions whether a project may have a significant effect0."Klamath Siskiyou Wildlands Ctr.v Boody.468 F.3d 549,162(9th Cir.2006)(underscored emphasis in original)(bold emphasis added). The record in this case—particularly the post-1985 EIS traffic reports—clearly"raises substantial questions,"id.,regarding changes in the project area and its impact on the surrounding communities.As previously indicated,Challacombe,the County's"most knowledgeable"expert with respect to its obligations to enforce HEPA,testified that timing,although not the sole criterion,is an"important"component in the County's permit review and concurrent determination of whether a SEIS is required.According to Challacombe,"[i]f the surrounding community's changed,we would consider that[.]"He also testified that he was"sure"the County would"require an updated traffic study at the time of building permit application for the Kuilima development"and that"[a]twenty year old traffic study is not sufficient,because...there may be factors in the community that have changed,i.e.,traffic." The record suggests that traffic impacts have,indeed,changed since 1985.New evidence documenting changes in traffic patterns in the area have been presented in the form of seven post-1985-EIS traffic studies and reports,including,interalia:(1)the 1991 traffic report;(2)DOT's traffic counts taken on Kamehameha Highway fronting the resort in August 2000;(3)the 2005 Laniakea traffic report;(4)Kuilima's 2005 traffic report;and(5)Kuilima's 2006 Addendum Nos.1,2,and 3 to the 2005 traffic report.Based on the description of these reports discussed in section I.A.3.,supra,it appears that the Kuilima expansion project will result in traffic impacts that were not contemplated by the 1985 452 EIS,which predicted impacts only through the year 2000.In other words,all of*452 the post-1985 EIS traffic studies and report suggest that changes have occurred since 1985.The 1985 EIS indicated,for example,that,"[w]hile the increased traffic generated by the proposed resort expansion is significant when compared to the projected background conditions,it is not beyond the carrying capacity of an upgraded,high quality two-lane arterial"however,Addendum No.1 predicted in 2006 that,at the project's full development,peak hour traffic operations at the intersection of Kamehameha Highway and Alpha Road"are expected to deteriorate below satisfactory LOS." Moreover,as previously indicated,the 1985 EIS provided an assessment of the traffic impact to the region,i.e.,between Haleiwa and Punalu'u and specific traffic data for certain regional areas.However,none of the updated traffic studies involved any regional areas,only impacts upon the areas fronting the resort and within the resort itself. Nevertheless,inasmuch as the entire North Shore area is served by the one two-lane roadway(namely,Kamehameha Highway),it is reasonable to infer that studies showing increased impacts in the local region would likely impact the regional areas. The record also indicates that beaches and near shore waters within the project area are now used by endangered and threatened species,specifically the monk seal and green sea turtle.The facts indicate that:(1)the project will likely result in increased impacts on the monk seal population because monk seals are vulnerable to harassment by humans and face increased threats in areas where they are exposed to greater human contact;(2)the numerous recently reported sightings of monk seals in the area suggest that the beaches and near shore areas of the project are significant to the regeneration of the monk seal population;and(3)because the project is expected to draw hundreds more people—many of them tourists who are unfamiliar with monk seal protection requirements—the likelihood of increased impacts on monk seals and their regeneration is likely.Moreover,studies conducted after the 1985 EIS was approved have also demonstrated an increase in the green sea turtle population in the project area. As previously indicated,the defendants argue that there is no"new"evidence that was"not originally disclosed or previously dealt with in the 1985 EIS."However,based on the foregoing discussion regarding the post-1985 EIS reports and studies regarding traffic conditions,monk seals,and green sea turtles,such information clearly qualifies as "new"information or circumstances that were"not originally disclosed,"not previously considered,and could have a substantial effect on the environment. Based on the foregoing,we believe the plaintiffs have clearly presented"new"evidence that was not considered at the time the 1985 EIS was prepared and could likely have a significant impact on the environment.Kepo'o,106 Hawaii at 289 n.31,103 P.2d at 958 n.31.Consequently,we hold that the project constitutes an"essentially different action...under consideration"and,based on the plain language of HAIR§11-200-26,"a supplemental statement[should have been]prepared and reviewed." Any other result would be both absurd and contrary to public policy in Hawaii.With respect to the possible absurd result,the ICA dissent aptly observed that: [U]nder Kuilima's[,]...the[County's,and the majority's]interpretation of the applicable rules and circumstances,because no specific deadline was established for the project's completion,the 1985 EIS would remain valid in perpetuity and no SEIS could ever be required,so long as no substantive changes to the design of the project were made. Unite Here!,120 Hawaii at 472,209 P.3d at 1286(Nakamura,J.,dissenting)(emphasis added).Indeed,ignoring the implicit time condition dictated by the anticipated life of the project upon which an original EIS has been based would allow unlimited delays and,in turn,permit possible resulting negative impacts on the environment to go unchecked.In other words,allowing an outdated EIS to"remain valid in perpetuity'directly undermines HEPA's purpose. HRS§343-1 (setting forth the findings and purpose for HEPA)states that 453 *453[t]he legislature finds that the quality of humanity's environment is critical to humanity's well being,that humanity's activities have broad and profound effects upon the interrelations of all components of the environment,and that an environmental review process will integrate the review of environmental concerns with existing planning processes of the State and counties and alert decision makers to significant environmental effects which may result from the implementation of certain actions.... It is the purpose of this chapter to establish a system of environmental review which will ensure that environmental concerns are given appropriate consideration in decision making/.] (Emphases added).Indeed,this court has repeatedly recognized the public purpose served by HEPA to"ensure that environmental concerns are given appropriate consideration in decision making"such that"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."See,e.g.,Kahana Sunset Owners Assn v.County of Maui,86 Hawai'i 66,70,947 R2d 378,382(1997) (citing HRS§343-1)2-3;Citizens for the Protection of the N.Kohala Coastline v.Count of Hawaii,91 Hawai'i 94,104 n.11,979 P.2d 1120,1130 n.11 1999.(also citing .............................................................................................................................................................................................Y..................................................................................................................................................................................................�:...............). HRS§343-1);Sierra Club v.Dep't of Transp. 115 Hawaii 299,.327&342,167 P.3d 292,320&335(2007)(referring to HRS§343-1). Kuilima argues that the ICA majority's interpretation of HAIR§§11-200-26 and 11-200-27"provides a reliable,consistent process that recognizes and balances the developer's interest and the predictability of a project's entitlements with environmental considerations."More specifically,Kuilima adopts the reasoning of the United States Supreme Court that"an agency need not supplement an EIS every time new information comes to light after the EIS is finalized"and that"[t]o require otherwise would render agency decision-making intractable."(Quoting Marsh v Oregon Natural Res.Council 490 U.S.360 373 109 S.Ct.1851 104 L.Ed.2d 377 1989)(applying federal law)).The County agrees,arguing that,"[i]f every change in circumstances could lead to a[]SEIS challenge,even if only to determine whether such change rendered the project'an essentially different action[]'[]the land use approval would be mired in an untenable gridlock."However,the foregoing analysis does not suggest that supplemental environmental review https://scholar.google.com/scholar_case?case=4308700817237546533&q=unite+here+local+5&hl=en&as_sdt=2006 14/17