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 is required"every time new information comes to light after[an]EIS is finalized."Marsh,490 U.S.at 373,109 S.Ct.1851.To the contrary,the conclusion that a SEIS is warranted is based on the particular circumstances in this case and on the evidence discussed supra.Thus,the defendants'arguments are without merit. Based on the foregoing,we hold that the circuit court erred in concluding that,as a matter of law,"[t]he timing of the[p]roject has not substantively,or essentially,changed" and that,"[i]n 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." Consequently,the ICA majority erred in reaching the same conclusion. D. DPP's Review of Kuilima's Subdivision Application As previously stated,the ICA,in its majority opinion,did not address the plaintiffs'argument that the DPP did not take a"hard look"at the allegations and evidence presented to it with respect to Kuilima's subdivision application.The plaintiffs make the same contention before this court,and essentially argue that the DPP did not follow the requisite 454 procedure in determining that a*454 SEIS was not required.In response,Kuilima argues that the DPP did,in fact,take a"hard look"at"the alleged intensity of impacts'and 'new circumstances and evidence"'and,as a result,the DPP followed the requisite procedure and did not act arbitrarily or capriciously in deciding not to require a SEIS. Neither the case law in this jurisdiction nor HEPA itself offers guidance as to which standard of review should apply to an agency decision regarding a SEIS.However,this court has reviewed an agency's decision whether an EIS satisfies the statutory requirements under the"rule of reason"standard.See Price,81 Hawai'i at 182,914 P.2d at 1375.As applied to considerations of the adequacy of an EIS,this court has stated that: In making such a determination the court is guided by the"rule of reason,"under which an EIS need not be exhaustive to the point of discussing all possible details bearing on the proposed action but will be upheld as adequate if it has been compiled in good faith and sets forth sufficient information to enable the decision-maker to consider fully the environmental factors involved and to make a reasoned decision after balancing the risks of harm to the environment against the benefits to be derived from the proposed action,as well as to make a reasoned choice between alternatives. Price,81 Hawaii at 182,914 P.2d at 1375(quoting Life of the Land,59 Haw.at 164-65,577 P.2d at 1121 (citation omitted))(footnote omitted).Moreover,we have recognized that a court is not to substitute its judgment for that of the agency as to the environmental consequences of its action.Rather,the court must ensure that the agency has taken a"hard look"at environmental factors. If the agency has followed the proper procedures,its action will only be set aside if the court finds the action to be"arbitrary and capricious,"given the known environmental consequences. Id.at 182 n.12,914 P.2d at 1375 n.12(citing Stop H-3 Assn v.Lewis,538 F.Supp.149,159(D.Haw.1982))(emphases added).Inasmuch as this court has applied the"rule of reason"and"arbitrary and capricious"standards of review with respect to EISs and agency decisions relating to environmental consequences,we extend such standard of review to cases involving an agency's decision with regard to SEISs. As previously mentioned,in assessing Kuilima's subdivision application to determine whether to require a SEIS,the DPP's rationale was that the phasing or timing of the project was irrelevant,and,thus,it looked for changes only within the project itself.However,evidence in the record indicated that there was,indeed,a substantive change in the timing of the project such that an"essentially different action"was under consideration,HAIR§11-200-26,thereby rendering the"original statement...no longer...valid," id.,and,thus,dictating the need for a SEIS.The DPP ignored the most obvious fact that the 1985 EIS was based on detailed information current as of 1985,i.e.,that the conditions upon which the 1985 EIS was based were over twenty years old.For the DPP to assume that conditions would not have changed over twenty years is unreasonable,especially given the"new"evidence with respect to traffic,monk seals,and green sea turtles,discussed supra.Thus,it cannot be said that"the agency has taken a hard look'at[the]environmental factors."Given the unreasonable and seemingly cursory consideration of whether a SEIS was warranted,we hold that the DPP's decision that one was not required was"arbitrary and capricious." IV. CONCLUSION Based on the foregoing,we vacate the ICA's June 12,2009 judgment on appeal,the circuit court's June 4,2007 amended final judgment in favor of the defendants,and remand this case to the circuit court with instructions to enter judgment in favor of the plaintiffs. Concurring Opinion byACOBA,J. I concur in the result. 455 It would seem irrefutable that an environmental impact statement(EIS)cannot exist*455 in perpetuity.See Unite Heref Local 5 v City&County of Honolulu,120 Hawaii 457„ 472,209 P.3d 1271,1286(Apn 2009)-(Nakamura J.,dissenting),(stating that"under...[the]interpretation of the applicable rules and circumstances[by Respondents/Defendants-Appellees City and County of Honolulu(City)and Kuilima Resort Company(Kuilima)],because no specific deadline was established for the project's completion,the 1985 EIS would remain valid in perpetuity").But a construction of the provisions of Hawaii Revised Statutes(HRS)chapter 343 that would lead to a result other than the one reached here would affirm or produce the converse of that proposition.Consequently,the reasonable resolution of this writ is to order that summary judgment be entered in favor of Petitioners/Plaintiffs-Appellants Keep the North Shore Country and Sierra Club,Hawaii Chapter[collectively,Plaintiffs],and against Respondents/Defendants-Appellees City,Henry Eng,Director of the Department of Planning and Permitting(DPP),and Kuilima[collectively,Defendants],granting the requested declaration that a supplemental environmental impact statement(SEIS)be required. A contrary result would also violate the legislature's underlying purpose in enacting HRS chapter 343.HRS§343-1 (Supp.2006)states,"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 along with economic and technical considerations."(Emphasis added.)Manifestly,the purpose of requiring an EIS is to ensure that agencies like the DPP are able to make informed decisions regarding projects that will impact the surrounding environment. This court has stated that an EIS will be upheld if,among other things,it contains"sufficient information to enable the decision-maker to consider fully the environmental factors involved and to make a reasoned decision after balancing the risks of harm to the environment against the benefits to be derived from the proposed action,as well as to make a reasoned choice between alternatives."Price v.Obayashi Hawaii Corp.,81 HawaiCi 171,182,914 P.2d 1364,1375(1996).(quoting Life of the Land v.Myoshi,59 Haw.156,164-65,577 P.2d 111 6,1121 (1978))(footnote and citation omitted).However,it cannot be said reasonably that"environmental concerns are given appropriate consideration in decision making,"HRS§343-1,when the information is incomplete or outdated.Nor can it be said that in cases where information is outdated,agencies are able to"balanc[e]the risks of harm to the environment against the benefits to be derived from the proposed action[.]"Obayashi,81 Hawaii at 182,914 P.2d at 1375.It would be inconsistent with the express purpose of HRS chapter 343 to conclude that agencies may rely on an EIS in making decisions when the information contained therein is 456 insufficient.t11 Thus,an EIS cannot*456 be relied on reasonably for an indefinite period of time.L] https://scholar.google.com/scholar_case?case=4308700817237546533&q=unite+here+local+5&hl=en&as_sdt=2006 15/17