HomeMy WebLinkAboutCOM 0302.002 2018-2020 P1
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'TCt1NT Y f HE ` �1"
Testimony to Hawaii County Council - Finance Committee
June 3, 2019 Meeting 2019 JUS! m3 PH !: 25
In Sierra Club v. Office ofPlanning,l commonly referred to by its place and project name
"Koa Ridge", the Hawaii Supreme Court stated: "The fact the Project may change does not
eliminate the statutory requirement of an EA at the earliest practicable time... While projects
indeed may change in response to public input, actions of agencies, economic conditions, or
other factors,requiring early environment assessment comports with the purpose of HEPA to
`ensure that environmental concerns are given appropriate consideration in decisions,' HRS 343-
1, and provides a safeguard against a post hoc rationalization [] to support action already
taken."' (Citing Citizens for the Protection of the North Kohala Coastline v. County of Hawaii2).
The Citizens Court found that"decisions reflecting environmental considerations can most easily
be made when other basic decisions are also being made,that is, during the early stages of
project conceptualization and planning."
Regarding the importance "of early environmental assessment,"in the Koa Ridge
decision, the Hawaii Supreme Court goes on at length:
d.Early environmental assessment comports with the purpose of NEPA.
In Citizens, we stated the importance of early environmental assessment:
Requiring early environmental assessment of the Mahukona project
comports with HRS 343-5(c)'s express mandate that environmental
review be undertaken at the earliest practicable time. This result also
finds support in the spirit and intent of HEPA 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 ... [and] alert decision makers to significant
1 Sierra Club v. Office of Planning, 109 Haw.411, 126 P.3d 1098 (2006).
2 Citizens for the Protection of the North Kohala Coastline v. County of Hawaii,91 Haw. 94, 105,979 P.2d
1120, 1131 (1999)(brackets in original). 2
Comm. No.
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Ref. Date JINN 0 3 2019
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environmental effects which may result from the implementation of
certain actions. HRS 343-1 (1993).
Consonant with these policies, both federal and state courts have
recognized that environmental review must occur early enough to
function practically as an input into the decision making process.
3
Failing to follow HRS 343 procedures, without the requisite"early"environmental
review documents, tw Director Kucharski is merely rationalizing and justifying his decisions
which have been and are currently being made without any consideration of the environmental
effects. In explaining his thinking, Director Kucharski said: "In an EA you come up with a
preferred alternative, and that preferred alternative is what all of the environmental studies and
impacts are centered around. And you have to go through a justification as to how you got to
that preferred site. And that is the process. "3
I have frequently complained about the fact that no EA has been published for public
comment for more than 12 years for a DEM wastewater plant to be built 2 miles from my Ka'u
home. In making my case, I have cited the United States Court of Appeals for the Ninth Circuit
which cautioned that"[a]n assessment must be `prepared early enough so that it can serve
practically as an important contribution to the decision making process and will not be used to
rationalize or justify decisions already made'... the rationale behind this rule is that
inflexibilitymay occur if dela
y yin preparing an EIS is allowed: `After major investment of
both time and money, it is likely that more environmental harm will be tolerated.
In Sierra Club v. Marsh,5 Judge (later Justice) Breyer concluded:
[T]he harm at stake is a harm to the environment, but the harm
consists of the added risk to the environment that takes place
when governmental decision-makers make up their minds without
3 Director Kucharski statement in the County of Hawaii Environmental Management Commission
meeting minutes of June 27, 2018 [approved as presented July 26, 2018], Page 26.
"Save the Yaak Committee v.J. R. Block,840 F.2d 714, 718 (9th Cir. 1987) (quoting 40 CFR 1502.5 (1987).
s Sierra Club v. Marsh, 872 F.2d 497 Wt Cir. 1989).
having before them an analysis (with prior public comment) of the
likely effects of their decision upon the environment. NEPA's
object is to minimize that risk,the risk of uninformed choice, a
risk that arises in part from the practical fact that bureaucratic
decision-makers (when the law permits) are less likely to tear
down a nearly completed project than a barely started project....
By waiting over twelve years to even begin preparation of the requisite "early"
environmental review documents for the Ka'u sewage plants, Director Kucharski is merely
rationalizing and justifying their decisions which have been and are currently being made
without any public review and consideration of prior public commentary about the harmful
environmental effects of these projects.
Like the Federal NEPA statutes cited earlier, the State HEPA laws require prior public
review and comment before decisions like Bills 75 and 76 are made by you, the County Council.
For example, in Kahana Sunset Owners Association v. County of Maui,6 Hawaii Supreme
Court Justice Nakamura concluded by reviewing the purposes of an EA, noting that the
document gives governmental decision-makers, like yourselves, and the public information
necessary to evaluate environmental effects. She also noted the importance of public notice and
comment in that process: "The public comment and notification provisions of HEPA underscore
the legislative intent to provide broad-reaching dissemination of proposed projects so that the
public may be allowed an opportunity to comment and the agency will have the necessary
information to understand the potential environmental ramifications of their decisions." She
continued: "[I]n the absence of the preliminary environmental assessment, the legislative intent
that potential effects be studied and the public notified is undercut."
6 Kahana Sunset Owners Association v. County of Maui,86 Haw. 66,947 P.2d 378 (1997).
Anatolini, Denise E., The Moon Court's Environmental Review Jurisprudence: Throwing Open the
Courthouse Doors to Beneficial Public Participation, pp. 591-592.
Director Kucharski maintains that I have been"given adequate opportunity to ask questions
and support or oppose the Naalehu project"at his meetings promoting his pre-decided sewage
projects. But the legislative intent for early HRS 343 environmental review is clear, and Director
Kucharski has been in violation of the HEPA statutes by evading publication of a revised EA which
would allow for public comments that can then be used to guide yon{funding decisions for Bills 75
and 76. The way it now stands, for the past 12 years and continuing to this very day, Director
Kucharski just makes decisions and then intends to eventually use an EA to justify these decisions.
This is not what the legislature envisioned nor what the Hawaii Supreme Court has mandated that
you, on the County Council, do.
Therefore, as I have cited, it is required by law that the County Council must have Director
Kucharski complete both the Naalehu and Pahala sewage plants' NEPA/HEPA FEISs and RODs
before you will have the information required for you to make informed SRF loan decisions needed
to legally approve Bills 75 and 76.
Respectfully submitted by:
Sandra Demoruelle
AP
CUTT Mil
f,41 A
17. Safe Drinking Water Act (42 U.S.C. § 300f)
i
18. Wild and Scenic Rivers Act (16 U.S.C. § 1271)
PLEASE CHECK THE BOX THAT APPLIES TO THE PRO,ECT:
❑ The County has prepared a Final Environmental Impact Statement (FEIS) and Record of Decision
(ROD) in accordance with Chapter 343 of the Hawaii Revised Statutes (HRS) and Chapter 11-200 of the
Hawaii Administrative Rules (HAR), and 40 CFR §35.3140(b)(3y(ii) (for CWSRF projects), or 40 CFR
§35.3580(c)(3)(ii) (for DWSRF projects). Where there are differences between the Hawaii
Statutes/Rules and the USEPA statutes and regulations that affect a Project, the Project must comply
with the USEPA statutes and regulations in order to qualify for the SRF Program's loan. The County
recommends that the Department of Health (DOH) approve the FEIS and ROD.
CI The County recommends that the project qualifies for a reaffirmation or modification of a decision
contained in a previously issued FEIS/ROD in accordance with 40 CFR §35.3140(b)(3)(iii) (for CWSRF
projects) or 40 CFR §35.3580(c)(3)(iii) (for DWSRF projects).
7" _ �
❑ DOH concurs with the County's recommendation and approves the determination of the FEIS/ROD in
accordance with 40 CFR §35.3140(b)(3)(ii) (for CWSRF projects) or 40 CFR §35.3580(c)(3)(ii) (for
DWSRF projects); and Chapter 343, HRS and HAR, Chapter 11-200, HAR based on the information
provided by the County. However, this decision may be reconsidered if a discovery of information
concerning potential environmental impacts of the project occurs.
❑ DOH concurs with the County's recommendation and approves the reaffirmation or modification of the
previously issued FEIS/ROD in accordance with 40 CFR §35.3140(b)(3)(iii) (for CWSRF projects)or
40 CFR §35.3580(c)(3)(iii) (for DWSRF projects) based on the information provided by the County.
However, this decision may be reconsidered if a discovery of information concerning potential
environmental impacts of the project occurs.
❑ DOH does not concur or approve (fill in type of action and briefly explain reasons).
DOH Reviewer: Date:
SRF Environmental Impact State(EIS)Review Checklist
Page 4 of 4
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The genesis of the environmental tandem enacted in 1974, HRS Chapters 343 and 344, is discernible in the National
Environmental Policy Act of 1969 (NEPA) where Congress fostered objectives of protecting the environment and
improving the decision-making process relative thereto by (1) enlarging the basic mandates for federal agencies through
the adoption of a national.environmental policy, (2)establishing specific action-forcing procedures for implementation o$
the policy,(3)creating a Council on Environmental Quality, promoting the development of information on and indices
o eti�i onmental quality, and(5)providing for an annual report from the Council on progress toward the stated goals. F.
Anderson, NEPA in the Courts 1 (1973). Our legislature recorded a general policy on environmental protection in HRS
Chapter 344 and established specific action-forcing procedures for the implementation of the clicy, created an
environmental quality commission, ang provided for the development and publication oi*information on environmental
decisions in Chapter 343. Thus, the relevant state legislation undoubtedly mirrors NEPA's basic concepts. Elements of _
l � the California environmental policy act also have been incorporated in our law. D..Mandelker,supra,at 313.
EPA's s 102(2)(C), 42 U.S.C. s 4332(2)(C which ca for the preparation of enyironmentat impact statements on
wok
roposals for le is n an ctions has been character " heart of ." W. Rodgers, supra, s
, a �( urounterpart o is key ac ion- orcing provision is HRS s 343-5.[FN17]An EIS under the *465 state law
s 14.1
FN 17. This section was formerly s 3�����mended in 1979 by S.L.H. 1979,c. 197.
C\ informational document ... which discloses the environmental effects f r
a proposed action, effects of a proposed
061
(�"' action on t e econom' welfare of the commune y an tate, effects of the economic activities arising out of
he propose action, measures proposed to minimize adverse effects, and alternatives to the action and their
ealironmental effects.
�0�1 VHit�s 343-2(9)( )(formedy HRS s 343-1(6)).
(5)The Hawaii law, "by particularizing the subjects of inquiry,calls for a broader range of information than NEPA." Life
1,1,:5 of the Land v. Ariyoshi, 59 Haw. 156, 163, 577 P.2d 1116, 1121 (1978). It also is more expansive than the Model State
Environmental Policy Act in that the model law,unlike ours,appears to preclude the consideration of social and economic
implications by limiting the environmental impacts and effects includable in an EIS to the physical. D. Mandelker,supra,
at 153, 164-65. Moreover, HRS Chapter 343 is wider in scope than the federal or the typical state analogue, for the state
law covers private actions in certain defined situations and areas. HRS s 343-5(a) (formerly s 343-4(a)); HRS s 343-2(2)
(formerly s 343- 1(2)); W. Rodgers, supra, s 7.11, at 811-12. Nevertheless, the prescribed role of the EIS in the state
environmental protection scheme is informational. HRS s 343-2(9) (formerly s 343-1(6)); Life of the Land v. Ariyoshi,
supra, 59 Haw. at 163, 577 P.2d at 1120.
2.
(6, 7) Defendants-appellees claim the Board's approval of a use of the System's facilities to transport water to Kaluakoi's
development did not necessitate the preparation of an EIS. It was not, they say, an action likely to have a "significant
effect" upon the environment within the meaning of HRS s 343-2(11) (formerly s 343-1(8)), We do not affirm the award
of summary judgment on the foregoing basis,for we think the action was one with a probable "significant effect."
The critical phrase finds definition in HRS s 343-2(1 1)as
the sum of effects on the quality of the environment, including actions that irrevocably commit a natural resource,
curtail the range of beneficial uses of the environment, are contrary to the State's environmental policies or long- term
environmental goals*466 as established by law,or adversely affect the economic or social welfare.
When the foregoing is read conjointly with the meaning attached to another pertinent and crucial term discussed earlier,
If impact statement,"there is no room for the conclusion defendants-appellees seek.
Though a statement of non-impact possibly could have sufficed under the Executive Order of August 23, 1971,[FN 18]the
statutory definitions of "significant effect" and "environmental impact statement" dispel any notion that the action in
question is not of a genre demanding an impact document. The law definitely contemplates a consideration of the
secondary and non-physical effects of a proposal prior to a governmental approval thereof. HRS ss 343-2(9) and 343-2
(11) (formerly ss 343-1(6) and 343-1(8)); see D. Mandelker, supra, at 164-65. And the effects to be studied include the
socio-economic consequences of a proposed action,as well as its direct physical impact.
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