The Environmental Assessment: Issues Surrounding the Exclusion of Projects Significantly Affecting Hawai`I's Fragile Environme

The Environmental Assessment: Issues Surrounding the Exclusion of Projects Significantly Affecting Hawai`i’s Fragile Environment Jordon J. Kimura *

I. INTRODUCTION ...... 169 II. THE HEPA...... 171 A. Purposes of the HEPA...... 171 B. The Environmental Review Process under the HEPA ...... 172 1. Preliminary Matters Regarding the Environmental Review Process ...... 172 2. The Environmental Assessment ...... 174 3. The Environmental Impact Statement...... 175 4. Appeals...... 175 C. Hawaiì Supreme Court Decisions Interpreting the HEPA ...... 176 1. The court interprets “use of state or county lands” broadly to increase review of actions ...... 176 2. The court emphasizes consideration of the secondary impacts of a proposed action under the HEPA...... 177 D. Legislative Action Temporarily Amending the HEPA...... 178 III. ENVIRONMENTAL IMPACTS OF ACTIONS FALLING OUTSIDE THE SCOPE OF THE HEPA AND USING STATE OR COUNTY LANDS ...... 179 A. The Hawaiì Superferry...... 180 1. The HSF traverses marine environments and may strike whales...... 181 2. The HSF may transport invasive species between islands 182 3. The HSF may have secondary impacts on the environment...... 182 B. Additions to Fleet by Matson and Cruise Lines ...... 183 C. Start-up Inter-island Airlines...... 184 1. An increase in the number of jet aircrafts operating in Hawaiì would increase pollution in the upper atmosphere185 2. New jets would increase noise pollution...... 186 3. New jets may transport invasive species between islands 187 IV. PROPOSING A BROADER DEFINITION OF “A CTION ”...... 188 A. “Action” Should Include Any Project or Program with a Significant Effect on the Environment ...... 188 B. Benefits of Broadening “Action” ...... 190

* J.D. Candidate 2009, William S. Richardson School of Law, University of Hawai`i at M ānoa. The writer would like to thank Professor David L. Callies for his assistance in reviewing this comment, Jennifer M. Gima for her moral support, and the editors of the Asian-Pacific Law & Policy Journal for their gracious assistance. 2008] Kimura 169

1. Increases Protect Hawaiì’s environment...... 190 2. Public participation in the review process...... 190 3. Reduces the need for intervention by the legislature and governor ...... 192 4. Benefits Hawaiì’s Judiciary by reducing the number of cases challenging the HEPA’s applicability to actions ...... 193 C. Broadening the Definition of “Action” Would Be Consistent with the Hawaiì Supreme Court’s Direction to Expand the Reach of the HEPA’s EA Requirement ...... 193 D. Broadening “Action” Would Benefit Applicants ...... 194 E. NIMBYism Would Benefit Rather Than Hurt the Environment. 195 1. Dialogue among applicants and interest parties resulting from NIMBYism would benefit the environment ...... 196 2. Increased exposure of actions to the public resulting from NIMBYism would benefit both the planning process and environment...... 197 V. CONCLUSION ...... 198

I. INTRODUCTION Whether in the form of new hotels, housing subdivisions, inter- island air carriers, or passenger ferries, development has played a key role in changing Hawaiì’s fragile environment in recent decades. 1 To combat the damaging effects of development on the environment, state legislators passed the Hawaiì Environmental Policy Act 2 (HEPA) in 1974. Designed to integrate environmental concerns with the planning process, 3 the HEPA requires certain “actions” using state or county lands and significantly affecting Hawaiì’s environment to conduct an environmental assessment (EA), 4 a procedure designed to reveal an action’s potential environmental effects. 5

1 See William Allen, Paradise Lost?: Hawaii May Appear as a Lush, Tropical Jewel. But Many of Its Native Species are Dying. Scientists Reluctantly Accept that Some of Hawaii’s Species Cannot Be Saved , ST. LOUIS POST -DISPATCH , Sept. 24, 2000, at A1, available at 2000 WLNR 9138898. 2 Haw. Rev. Stat. (H.R.S.) Chapter 343 (1993). 3 H.R.S. § 343-1 (1993). 4 H.R.S. § 343-5 (1993). 5 Office of Environmental Quality Control, State of Hawai`i, A Guidebook for the Hawaii State Environmental Review Process 7 (2004), available at http://oeqc.doh.hawaii.gov/Shared Documents/HOW TO PREPARE AN ENVIRONMENTAL ASSESSMENT/Guidebook For The Environmental Review Process 202004.pdf [hereinafter Guidebook ]. 170 Asian-Pacific Law & Policy Journal [Vol. 10:1

The HEPA’s narrow definition of the term “action,” however, limits the EA requirement to only those projects using state or county lands initiated by applicants consisting of state or county agencies or applicants requesting approval for a proposed action under a statute, ordinance, or rule. 6 Therefore, the HEPA excludes from the EA process many projects significantly affecting Hawaiì’s environment. For example, despite using state lands, the Hawaiì Superferry (HSF) (separate from the Kahului Harbor improvements), barges, cruise lines, and recent start-up inter-island airlines, such as go! and Mokulele Airlines, fall outside the scope of the HEPA and do not require an EA. This exclusion of actions using state or county lands from the EA process undermines the purposes of the HEPA to protect the quality of humanity’s environment, increase public participation in the planning process, and raise the environmental consciousness of citizens. 7 Hawaiì’s environment and citizens would be better served if the HEPA uniformly required all actions using state or county lands with the potential to significantly affect Hawaiì’s environment to undergo an EA. An amendment that incorporates this proposal would provide applicants, community decision-makers, and the public with a better understanding of the environmental effects of major actions using state or county lands. The public would also have an opportunity to comment on these environmental effects. In collaboration with decision-makers and the public, an applicant could then pursue alternatives or mitigating measures to reduce its action’s effects on the environment before irreparable harm results. This comment proposes, therefore, that to comply with the purposes of the HEPA, the Hawaiì State Legislature should broaden the definition of the term “action” in the HEPA to require an EA for any “action” using state or county lands with the potential to significantly affect Hawaiì’s environment. Part II explains the HEPA, focusing on its purposes, procedural requirements, and application by the Hawaiì Supreme Court and State Legislature. Part III examines the environmental impacts of certain actions falling outside the scope of the HEPA to demonstrate the importance of conducting an EA for these and all similar actions. Part IV proposes a broader definition of “action” under the HEPA and considers the benefits this change would have on Hawaiì’s environment and the planning process. Part V emphasizes the pressing need for this change in order to ensure the protection of Hawaiì’s environment.

6 H.R.S. § 343-2 (1993). 7 H.R.S. § 343-1 (1993). 2008] Kimura 171

II. THE HEPA Environmental policy acts such as the HEPA have demonstrated that proper environmental review of actions can result in substantial benefits to the environment. 8 Because of these potential benefits, hundreds of actions across the nation undergo some form of environmental review each year. 9 The HEPA process differs from the process of the National Environmental Policy Act of 1969 10 by requiring actions proposed by private applicants in certain situations to undergo environmental review. 11 This difference complicates the HEPA process and raises issues as to the applicability of the HEPA to certain private applicants, such as those that do not require approval to commence an action under a statute, rule, or ordinance. To facilitate a better understanding of this complicated process, the following sections will explore the HEPA’s (1) purposes, (2) procedure to conduct an EA and environmental impact statement (EIS), (3) treatment by the Hawai`i Supreme Court, and (4) recent amendments by the Hawai`i State Legislature. A. Purposes of the HEPA The HEPA serves three key purposes, which the statute’s “findings and purpose” section details. 12 First, the HEPA provides appropriate consideration of environmental impacts of actions in the planning process and emphasizes economic and technical matters. 13 Second, the HEPA promotes public participation in the review process to benefit “all parties involved and society as a whole.” 14 Third, the HEPA publicizes the environmental effects of actions, which enhances the environmental consciousness of the applicant, decision-makers, and public. 15 These three purposes of the HEPA serve as important considerations in determining

8 Peter S. Knapman, Comment, A Suggested Framework for Judicial Review of Challenges to the Adequacy of an Environmental Impact Statement Prepared Under the Hawaii Environmental Policy Act , 18 U. HAW . L. REV . 719, 732 (1996). 9 Guidebook , supra note 5, at 6. 10 Pub. L. No. 91-190, 83 Stat. 852 (1969) (codified at 42 U.S.C. §§ 4331 et. seq. (1995)). 11 Molokai Homesteaders Coop. Ass'n v. Cobb , 63 Haw. 453, 629 P.2d 1134 (1981); Knapman, supra note 8, at 727-29; Lisa A. Bail et al., Emerging Environmental and Land Use Issues , 9-JUN HAW . B.J. 4, 11 (2005). 12 See H.R.S. § 343-1 (1993). 13 Id. ; Citizens for Prot. of N. Kohala Coastline v. County of Haw. , 91 Hawaiì 94, 104, 979 P.3d 1120, 1130 (1999); Conf. Comm. Rep. No. 27-74, in 1974 Senate Journal, at 775-76; Conf. Comm. Rep. No. 27, in 1974 House Journal, at 863-64. 14 H.R.S. § 343-1 (1993). 15 Id. 172 Asian-Pacific Law & Policy Journal [Vol. 10:1 whether an action must undergo environmental review. 16 B. The Environmental Review Process under the HEPA The HEPA environmental review process involves four main actors in addition to the applicant that proposes the action. First, the State of Hawaiì Department of Health’s Office of Environmental Quality Control (OEQC) implements the HEPA in Hawaiì. 17 Second, the Environmental Council establishes guidelines for the procedure and content of an EA and EIS and exempts certain actions from review. 18 Third, an “approval agency,” which differs based on the type of action involved, processes an EA received from an applicant and either issues a “finding of no significant impact” (FONSI) or requires an action to undergo an EIS. 19 If a government agency proposes an action, that same government agency serves as the approval agency and reviews its own EA. 20 Fourth, if an action requires an EIS, an “accepting agency” approves the EIS received from the applicant. 21 An applicant works closely with these actors in the review process. 1. Preliminary Matters Regarding the Environmental Review Process The HEPA requires certain actions to undergo environmental review consisting of an EA and EIS to determine if the benefits of an action outweigh its detrimental effects to the environment and surrounding community. 22 All actions in Hawaiì either trigger: (1) no HEPA review because the action falls outside the scope of the HEPA; (2) no HEPA review because the action qualifies for an exemption; (3) HEPA review consisting of an EA; or (4) HEPA review consisting of an EIS. 23 Actions falling into the third category may also require an EIS if an approval agency decides based on the applicant’s EA that the action will significantly affect the environment. 24 Private-sector applicants, if requiring government approval for an action, and public-sector applicants, such as a government agency, must

16 See Citizens , 91 Hawaiì at 104, 979 P.2d at 1130 (1999) (relying on the “spirit and intent” of the HEPA in determining that an action required an EA). 17 Guidebook , supra note 5, at 6. 18 H.R.S. §§ 343-2, -6 (1993). 19 Guidebook , supra note 5, at 9, 24. 20 Id. at 9. 21 Id. at 15. 22 Kepoò v. Kane , 106 Hawaiì 270, 287, 103 P.3d 939, 956 (2005) (quoting Price v. Obayashi Haw. Corp. , 81 Hawaiì 171, 180, 914 P.2d 1364, 1373 (1996)). 23 Guidebook , supra note 5, at 13. 24 Id. at 20. 2008] Kimura 173 conduct an EA if the action proposes one or more of nine “triggering events.” 25 The main “triggering event” under the HEPA involves actions “propos[ing] the use of state or county lands or the use of state or county funds.” 26 In addition, an action may trigger an EA if it proposes a use within a conservation district, shoreline area, historical site, or parcel inside the special district of Waikiki. 27 Triggering events may also include proposals to amend a county general plan, reclassify conservation land, and construct or expand helicopter facilities within a conservation, shoreline, or historic area. 28 But even if an action triggers one or more of these nine events, it may still be exempt from HEPA review. 29 Under the HEPA, the Environmental Council must determine exemptions for actions having minimal or no effect on the environment. 30 The Environmental Council has established a list of actions exempt from review, which includes: the operation, repair, or maintenance of existing structures or facilities; construction of small facilities; minor alterations in conditions of land; collection of basic data; construction or placement of minor structures; alternation of interiors; demolition of structures; and issuance of zoning variances. 31 In the case of government applicants, the applicant determines whether its action qualifies for an exemption. 32 With private-sector applicants, the “agency with the authority to grant approval of the project” determines whether an exemption applies. 33 Each state or county agency may also establish a list of actions exempt from environmental review, provided the agency obtains the advice of other agencies about its proposed exemptions. 34 The agency must then request approval of its list from the Environmental Council. 35 These agency-made exemptions must be “consistent with both the letter and intent expressed in the exempt classes [listed above] and [H.R.S.] chapter 343.” 36

25 See, e.g. , Sierra Club v. Department of Transp. , 115 Hawai`i 299, 306, 167 P.3d 292, 299 (2007) (hereinafter Sierra Club II ); H.R.S. § 343-5 (1993); Guidebook , supra note 5, at 9. 26 H.R.S. § 343-5(a)(1) (1993). 27 H.R.S. § 343-5(a)(2)-(5) (1993). 28 H.R.S. § 343-5(a)(6)-(9) (1993). 29 H.R.S. § 343-5(a) (1993). 30 H.R.S. § 343-6(7) (1993). 31 Haw. Code R. § 11-200-8 (Weil 1996). 32 Guidebook , supra note 5, at 9. 33 Id. 34 Haw. Code R. § 11-200-8(A) (Weil 1996); Guidebook , supra note 5, at 14. 35 Guidebook , supra note 5, at 14. 36 Haw. Code R. § 11-200-8(D) (Weil 1996). 174 Asian-Pacific Law & Policy Journal [Vol. 10:1

An action, however, will not always be free from environmental review because it qualifies for an exemption. 37 An action may still require review if proposed in a particularly sensitive environment or if it belongs to a collection of exempt actions having a significant impact on the environment. 38 On the other hand, if an action triggers environmental review and no exemptions apply, then the applicant proposing the action must conduct an EA or EIS, or both. 39 2. The Environmental Assessment For most actions requiring environmental review, the process begins with the EA. 40 The Hawai`i Supreme Court defines an EA as “an informational document . . . used to evaluate the possible environmental effects of a proposed action.”41 The EA must include “a detailed description of the proposed action or project and [an] evaluat[ion] [of its] direct, indirect[,] and cumulative impacts.” 42 The EA must also include possible alternatives to or mitigating measures for the proposed action.43 The applicant has the burden of preparing an EA. 44 To prepare for an EA, the applicant must consult with community members and interested parties about the proposed action. 45 Applicants must also contact neighboring landowners for feedback regarding the action. 46 Evidence of correspondence with these parties should be included with any EA sent to the approval agency. 47 An applicant must send a first and final draft of an EA to its approval agency. 48 Following receipt by the approval agency, the draft EA becomes available for public comment for thirty days. 49 An applicant must then address these public

37 Guidebook , supra note 5, at 14. 38 Haw. Code R. § 11-200-8(B); Guidebook , supra note 5, at 14. 39 H.R.S. § 343-5 (1993). 40 See Guidebook , supra note 5, at 6. 41 Sierra Club II , 115 Hawaiì at 307, 167 P.3d at 300. 42 Guidebook , supra note 5, at 6. 43 Id. 44 Kahana Sunset Owners Ass’n v. County of Maui , 86 Hawaiì 66, 74, 947 P.2d 378, 386 (1997). 45 Guidebook , supra note 5, at 16. 46 Id. 47 Id. 48 Id. at 19. 49 Sierra Club v. Department of Transportation , 115 HawaiÌ 299, 308, 167 P.3d 292, 301 (Haw. 2008) (hereinafter Sierra Club II ). 2008] Kimura 175 comments in its final EA. 50 The approval agency reviews the final EA and either issues a FONSI or, if the agency anticipates significant impacts on the environment, revises and prints the final EA as an EIS Preparation Notice (EISPN) to be sent back to the applicant. 51 The public may comment on and challenge a FONSI or EISPN determination. 52 Provided that a final EA receives a FONSI determination and the public does not challenge this finding, the applicant may proceed with the proposed action without further delay. 53 Otherwise, if an EA receives an EISPN determination, the applicant must conduct the extensive EIS. 54 3. The Environmental Impact Statement The EISPN and public comments provide the applicant with the scope of the EIS. 55 The applicant must then draft an EIS providing “mitigation measures to prevent or reduce the project’s negative effects and [a presentation] of alternative methods, modes[,] or designs of the proposed action.” 56 Once the applicant completes the draft EIS and sends it to the approval agency, the public may review and critique the draft during a forty-five day period. 57 The applicant must then submit a final EIS for acceptance.58 The governor or mayor accepts the EIS for actions by government applicants or by the approval agency for actions for private-sector applicants. 59 Once the accepting agency accepts the EIS, the applicant may proceed with its action, unless an aggrieved party files a judicial appeal. 60 4. Appeals Parties aggrieved by the environmental review process may appeal to the judiciary for relief. 61 The following agency determinations may be appealed: (1) no environmental review necessary, (2) FONSI, (3) EISPN,

50 Id. 51 Guidebook , supra note 5, at 19-20. 52 Sierra Club II , 115 Hawaiì at 308, 167 P.3d at 301. 53 Id. 54 Guidebook , supra note 5, at 21. 55 Sierra Club II , 115 Hawaiì at 308, 167 P.3d at 301. 56 Guidebook , supra note 5, at 21. 57 Id. ; Sierra Club II , 115 Hawaiì at 308, 167 P.3d at 301. 58 Guidebook , supra note 5, at 21. 59 Sierra Club II , 115 Hawaiì at 308, 167 P.3d at 301. 60 Id. 61 See generally H.R.S. § 343-7 (1993). 176 Asian-Pacific Law & Policy Journal [Vol. 10:1 or (4) acceptance of an EIS. 62 Depending on the type of determination challenged, the statute of limitations for actions varies between 60 and 120 days from the agency’s issuance of a determination.63 Therefore, the HEPA review process involves complicated procedural requirements designed to produce a thorough study of an action’s impact on the environment. Despite a well delineated process, however, the HEPA provides less guidance on which actions fall under the scope of the HEPA and require environmental review. The following section analyzes the Hawaiì Supreme Court’s view on which actions should undergo environmental review. C. Hawaiì Supreme Court Decisions Interpreting the HEPA The Hawaiì Supreme Court’s decisions on the issue of whether an action must undergo an EA reveal two trends in the court’s interpretation of the HEPA. First, the court interprets the HEPA’s “use of state or county lands” language broadly, which results in many projects falling under the HEPA and requiring an EA. Second, the court emphasizes a proposed action’s secondary impacts on the environment in deciding whether an action should have undergone environmental review. 1. The court interprets “use of state or county lands” broadly to increase review of actions The Hawaiì Supreme Court’s broad interpretation of “use of state or county lands” under the HEPA expands the reach of the HEPA and requires more actions to undergo environmental review. In Kahana Sunset Owners Ass’n v. County of Maui ,64 developers contested the requirement that a drainage system for a 300-home development undergo an EA when only a portion of the drainage system would run under county lands. 65 The court held that the entire project required an EA because the action used county lands and did not fall under an exemption. 66 The court further held that the HEPA’s “broad-reaching” purpose allows an agency to collect the “necessary information to understand the potential environmental ramifications of [its] decision[ ].” 67 The court continued to interpret “use of state or county lands” broadly in Citizens for the Protection of the North Kohala Coastline v. County of Hawaiì .68 In Citizens , the court held that plans to construct two

62 Bail et al., supra note 11, at 13. 63 H.R.S. § 343-7(a)-(c) (1993). 64 86 Hawaiì 66, 947 P.2d 378 (1997). 65 Id. at 68, 947 P.2d at 380. 66 Id. at 74, 947 P.2d at 386. 67 Id. 68 91 Hawaiì 94, 979 P.2d 1120 (1999). 2008] Kimura 177 golf cart tunnels under a state highway constituted a use of state lands and therefore required an EA for the entire project. 69 Again, the court emphasized the benefits of the EA to alert decision-makers of the possible adverse effects of an action on the environment. 70 The court again exemplified its practice of interpreting the HEPA’s “use of state or county lands” language favorably to increase review in Sierra Club v. Office of Planning, State of Hawaii 71 ( Sierra Club I ). In Sierra Club I , a private developer proposed to tunnel sewage lines underneath state highways. 72 The court found that this construction constituted a “use” of state lands and held that the developer would be required to conduct an EA. 73 The court cited Citizens to emphasize the importance in conducting an EA early in the planning process so that environmental concerns of actions received appropriate consideration. 74 Therefore, the court has demonstrated a trend of broadly interpreting “use of state or county lands.” By emphasizing the purposes of the HEPA and requiring entire actions to undergo an EA simply because an action touches state or county lands, the court has demonstrated its preference for increased review of actions to reveal environmental effects that may have remained hidden had an EA been neglected. This trend also exemplifies the court’s desire to ensure that environmental concerns arising from actions receive fair consideration in the planning process. 2. The court emphasizes consideration of the secondary impacts of a proposed action under the HEPA The Hawaiì Supreme Court has emphasized the importance of secondary impacts arising from a proposed action in deciding whether applicants must conduct an EA. For example, in Molokai Homesteaders Cooperative Ass’n v. Cobb ,75 the court held that the consideration of whether an action will have a significant effect on the environment must include broader secondary considerations of an action’s social and economic impacts. 76 In this case, the court required a private developer to conduct an EA because it found that the developer’s proposal to use pipelines to transport water to a large resort complex would raise the salinity of the neighborhood’s water supply, which would adversely

69 Id. at 103-05, 979 P.2d at 1129-31. 70 Id. at 105, 979 P.2d at 1131. 71 109 Hawaiì 411, 126 P.3d 1098 (2006). 72 Id. at 413, 126 P.3d at 1100. 73 Id. at 416, 126 P.3d at 1103. 74 Id. at 418-19, 126 P.3d at 1105-06. 75 63 Haw. 453, 629 P.2d 1134 (1981). 76 Id. at 465-66, 629 P.2d at 1143-44. 178 Asian-Pacific Law & Policy Journal [Vol. 10:1 impact surrounding residents and businesses. 77 By focusing on the social and economic consequences of the increased salinity on surrounding residents and businesses, the court seemed to suggest that an action may require an EA if an action’s secondary impacts warrant one. 78 Similarly, in Sierra Club v. Department of Transportation 79 ( Sierra Club II ), the court again emphasized the importance of an action’s secondary impacts in determining whether an action should undergo an EA. 80 In this case, the court held that the State’s Department of Transportation (DOT) neglected to conduct an EA of its proposed plans to improve Kahului Harbor in anticipation of the HSF’s start of operations. 81 In finding that the DOT’s proposed plans required an EA, the court focused on the DOT’s failure to consider the secondary impacts of the HSF in conjunction with the harbor improvements. 82 Therefore, by holding that an action’s secondary effects require consideration in the determination of whether an action must undergo environmental review, the court substantially expanded the reach of the HEPA and increased review of actions. In addition to broadly interpreting “use of state or county lands,” this focus on secondary impacts of an action demonstrates a tendency of the court to expand review of actions under the HEPA. But not all branches of Hawaiì’s government share this view. For example, the Hawaiì State Legislature focuses less on expanding the reach of the HEPA, but rather demonstrates a tendency to favor businesses in the environmental review process. D. Legislative Action Temporarily Amending the HEPA Responding to the Hawaiì Supreme Court’s decision in Sierra Club II , the Hawaiì State Legislature passed legislation in late 2007 to ensure that the HSF, or any similar inter-island ferry, would be exempt from requiring an EA under the HEPA before commencing operations. 83 This act applies regardless of whether a ferry requests approval under a statute, rule, or ordinance or whether a government agency commences construction of harbor improvements to accommodate passenger ferries. 84 Furthermore, this act allows ferries to operate while conducting an EA but fails to provide a public comment period before a ferry commences

77 Id. at 466-67, 629 P.2d at 1144. 78 Id. at 454, 629 P.2d at 1136. 79 115 Hawaiì 299, 167 P.3d 292 (2007). 80 Id. at 343, 167 P.3d at 336. 81 Id. 82 Id. 83 S.B. 1 D1, 24th Leg., 2d Spec. Sess. (Haw. 2008). 84 Id. 2008] Kimura 179 operations. 85 Essentially, the legislature has specifically exempted inter- island ferries from the review process without fully knowing or understanding a ferry’s environmental impacts that would have been disclosed by an EA. The legislature’s exemption of the HSF from the HEPA’s EA requirement could be better understood as a pro-business stance in interpreting the HEPA. Two bills proposed in 2002 potentially exempting from the HEPA’s EA requirement business-related activity further demonstrate the Hawaiì State Legislature’s tendency to favor businesses in the environmental review process. 86 The first bill would have exempted “tourism policymakers from complying with a law that requires government agencies to conduct environmental studies before enacting programs that use state money.” 87 The second bill would have amended the HEPA so that only projects requiring some form of construction would require an EA. 88 The previous discussion demonstrates that a tension exists between the Hawaiì Supreme Court’s tendency to subject actions to increased review and the Hawaiì State Legislature’s tendency to exempt overburdened actions proposed by businesses from the environmental review process. However, the legislature’s tendency to carve out these exemptions undermines the purposes of the HEPA. As increased development in Hawaiì results in more actions significantly affecting Hawaiì’s environment, 89 the HEPA process must be expanded to ensure that environmental concerns arising from actions receive appropriate consideration in the planning process. The following section explores the environmental impacts of three actions that have the potential to adversely affect Hawaiì’s environment to demonstrate the need for these and all similar actions to undergo an EA. III. ENVIRONMENTAL IMPACTS OF ACTIONS FALLING OUTSIDE THE SCOPE OF THE HEPA AND USING STATE OR COUNTY LANDS Under the current HEPA, many actions using state or county lands in Hawaiì can commence without undergoing environmental review. 90

85 Id. 86 John T. Auyong, Marketing and the Environment in Paradise: The Sierra Club Lawsuit Against the Hawai`i Tourism Authority , 7 HASTINGS W.-N.W.J. ENVTL . L. & POL ’Y 179, 182-83 (2001). 87 Id. ; see also Edwin McDowell, Sierra Club Sues Hawaii On Tourism Promotion , N.Y. TIMES , Apr. 23, 2000, at 53, available at 2000 WLNR 3212582 (detailing the “bill in the State Legislature [that] would [have] exempt[ed] tourism [actions] from having to comply with the law requiring environmental assessment . . . .”). 88 Id. ; Michele Kayal, Sierra Club, State to Square Off in High Court , HONOLULU ADVERTISER , Oct. 10, 2000, at B8. 89 Allen, supra note 1. 90 See discussion supra Part II.B. 180 Asian-Pacific Law & Policy Journal [Vol. 10:1

The following sections discuss the environmental impacts of (1) the HSF, (2) additions of vessels to barge and cruise line fleets, and (3) start-up inter-island airlines, all of which do not require an EA. 91 While representing only a fraction of actions falling outside the HEPA, these actions demonstrate the need to have all similar actions undergo an EA because of the potential for these types of actions to irreparably harm Hawaiì’s environment. A. The Hawaiì Superferry Capable of transporting 866 passengers and 282 vehicles, the HSF serves Hawaiì as its only inter-island passenger-vehicle transport ferry. 92 Hailed by supporters as an alternative to air travel, 93 the HSF has been portrayed as a symbol of progress. 94 But opponents of the HSF criticize HSF officials for failing to conduct an EA given the ferry’s potential to adversely affect Hawaiì’s environment. 95 Even the Hawaiì Supreme Court held that if it considered the environmental effects of the HSF separate from the Kahului Harbor improvements, the court would not have exempted HSF officials from conducting an EA because of its potential to adversely affect the environment. 96 Despite these effects, the HSF by itself does not require an EA under the HEPA. 97 Although “using” state-operated piers, the HSF does not constitute an “action” because HSF officials did not request approval to commence operations under a statute, ordinance, or rule. 98 Instead, the HSF, like many private actions in Hawaiì, could freely commence operations without environmental review. 99 The potential environmental effects of the HSF include the HSF’s (1) danger to humpback whales, (2)

91 Christie Wilson, Hawaii ferry not ‘singled out’ for review , HONOLULU ADVERTISER , Sep. 9, 2007, at A1. 92 Dan Nakaso, Hawaii law sets conditions, clears way for Superferry , USA TODAY , Nov. 5, 2007, at 14A, available at 2007 WLNR 21882632. 93 Christie Wilson, Judge lifts injunction on Hawaii Superferry , HONOLULU ADVERTISER , Nov. 15, 2007, at A1. 94 Christopher Pala, Legislature Clears Way for Hawaii Ferry , N.Y. TIMES , Oct. 31, 2007, at A19, available at 2007 WLNR 21427496. 95 Mark Niesse, Opponents attempt to stop Superferry , HONOLULU STAR- BULLETIN , Mar. 5, 2007, at A5. 96 Sierra Club v. Dept. of Transp. , 115 Hawai`i 299, 336, 167 P.3d 292, 329 (2007). 97 Wilson, supra note 91. 98 H.R.S. §§ 343-2 to -5 (1993). 99 Wilson, supra note 91. 2008] Kimura 181 ability to transport invasive species between islands, and (3) production of secondary impacts on the lesser populated Hawaiian Islands. 100 1. The HSF traverses marine environments and may strike whales Since 2005, the risk of the HSF colliding with humpback whales has raised significant concerns. 101 Roughly two-thirds of the humpback whale population of the Pacific Ocean migrates to Hawai`i during winter months. 102 These whales frequent the waters designated as the Hawaiian Islands Humpback Whale National Marine Sanctuary (sanctuary). 103 But the waters within the sanctuary do not encompass all parts of the Hawaiian waters where humpback whales mate and raise calves.104 Even when traveling outside the sanctuary on its Oahu-Maui route, the HSF’s potential to strike whales remains high. 105 The HSF’s speed endangers these humpback whales. 106 According to scientists, vessels traveling faster than sixteen miles per hour have a high probability of striking a humpback whale. 107 The HSF normally cruises at forty-three miles per hour. 108 At this speed, the HSF would inevitably strike a humpback whale in its path 100 or even 500 meters away. 109 HSF officials, then, should have conducted an EA before commencing operations because an EA would have provided HSF officials with detailed studies of its vessel’s potential to impact humpback whales and other rare, threatened, or endangered species. 110 In addition, an EA would have provided HSF officials with mitigating measures to

100 Derrick DePledge, Hawaii Superferry conditions finalized , HONOLULU ADVERTISER , Nov. 6, 2008, at B1. 101 Wilson, supra note 91. 102 Chris Oliver, Gigantic visitors always good for a fascinating show , HONOLULU ADVERTISER , Jan. 26, 2003, at E1. 103 Chris Oliver, Migration schedule is not well understood , HONOLULU ADVERTISER , Jan. 26, 2003, at E6. 104 Gary T. Kubota, Vessel plies waters teeming with humpbacks, expert says , HONOLULU STAR -BULL ., Sep. 21, 2007, at A6. 105 See id. 106 Christie Wilson, Hawaii Superferry risk to whales raised in 2005 , HONOLULU ADVERTISER , Oct. 4, 2007, at A1. 107 Gary T. Kubota, Biologist says risk of Superferry colliding with whale is ‘very high.’ HONOLULU STAR -BULL ., Sep. 11, 2007, at A5. 108 Id. 109 Claudine Sans Nicholas, Ferry too close, fast for comfort–whale expert , MAUI NEWS , Sep. 26, 2007, available at http://www.mauinews.com/page/content.detail/id/34496.html. 110 Guidebook , supra note 5, at 44. 182 Asian-Pacific Law & Policy Journal [Vol. 10:1 help minimize whale collisions. 111 For example, an EA might have suggested that HSF officials install a whale-detecting sonar, a feature the HSF lacked when it commenced operations. 112 2. The HSF may transport invasive species between islands The potential for the HSF to transport invasive species by way of passenger vehicles and cargo has raised environmental concerns. 113 For example, the HSF may transport fishing boats carrying Eucheuma seaweed, an invasive species currently found in Oahu’s bays that may cause significant damage to the ecosystems of neighbor island bays if transported. 114 In addition, the HSF may transport coqui frogs, stinging nettle caterpillars, Himalayan raspberry seeds, and mongooses, all of which are invasive species that have devastated the environment of a few isolated parts of the State but not others. 115 While it may not be definitively known whether the HSF’s transport of invasive species will significantly affect Hawai`i’s environment, an EA conducted by HSF officials before the start of operations would have likely revealed whether these concerns had merit and prompted HSF officials to carry out stricter screening procedures if necessary.116 3. The HSF may have secondary impacts on the environment The HSF may produce secondary impacts on the environment as a direct result of its operations. 117 For example, the HSF’s ability to transport over 200 passenger vehicles between islands results in the largest secondary effect of the HSF: increased traffic on the neighbor islands. 118 In addition, opponents argue that the HSF’s operations will result in

111 Christie Wilson, Superferry size, speed cited as risks to whales , HONOLULU ADVERTISER , Sep. 25, 2007, at A1. 112 Id. The HSF has since installed high-tech, thermal imaging gear to help detect the presence of humpback whales. Christie Wilson, Hawaii ferry adds whale- watch tech , HONOLULU ADVERTISER , Oct. 19, 2008, at A1. However, even this thermal imaging gear may fail to detect whales at night. Id. An EA would have likely allowed the HSF to determine the best gear necessary to detect whales during night voyages. Wilson, supra note 91. 113 See generally Wilson, Hawaii ferry adds whale-watch tech , HONOLULU ADVERTISER , Oct. 19, 2008, at A1 . 114 Christopher Pala, Hawaii Ferry Sits Idle Amid Protests and Court Rulings , N.Y. TIMES , Sep. 5, 2007, at A20. 115 Christie Wilson, Former Haleakala head urged Superferry EIS , HONOLULU ADVERTISER , Sep. 14, 2007, at A14. 116 Guidebook , supra note 5, at 44. 117 Wilson, supra note 91. 118 Id. 2008] Kimura 183 increased drug trafficking to the neighbor islands.119 By conducting an EA, HSF officials would have learned of potential mitigating measures to alleviate these secondary impacts. For example, an EA would have included traffic studies to assist HSF officials with scheduling arrival times to avoid peak traffic times on the neighbor islands. 120 An EA would also have alerted public officials of the need to increase staffing of police officers on neighbor islands to help deal with a potential increase in drug traffickers. 121 The potential environmental impacts of the HSF demonstrate the need to expand review of actions. An expanded review process would allow an applicant currently not requiring an EA to acquire extensive knowledge of its action’s adverse environmental effects through an EA. 122 The applicant would also be able to carry out alternatives or mitigating measures to lessen its action’s adverse impacts on the environment. 123 But the HSF is not the only action demonstrating the need for an expanded review process. Other actions adversely affecting Hawaiì’s environment, such as the expansion of barge and cruise line fleets in Hawaiì, further demonstrate the need to expand the review process. B. Additions to Fleet by Matson and Cruise Lines Vessel additions to barge and commercial cruise line fleets in Hawaiì, such as the addition of three inter-island vessels to the Norwegian Cruise Lines fleet since 2004, 124 would likely share many of the potential adverse environmental impacts of the HSF. For example, inter-island barge and cruise line ships also have a cruising speed averaging more than sixteen miles per hour and may potentially collide with humpback whales. 125 In addition, vessel additions increase the probability that these barge and cruise lines may transport invasive species of plants and animals between islands. 126 However, despite these potential environmental impacts, vessel additions by private applicants do not require EAs because these actions

119 Christie Wilson, Hawaii Superferry proved its skill, captain testifies , HONOLULU ADVERTISER , Sep. 18, 2007, at A1. 120 See DePledge, supra note 100. 121 Wilson, supra note 119. 122 See discussion infra Part IV.B.1. 123 See id. 124 Robbie Dingeman, Pride of Aloha’s new home will be in Asia , HONOLULU ADVERTISER , Feb. 12, 2008, at A1. 125 Kubota, supra note 107. 126 NBC HI News 8 at 6 (KHNL news television broadcast June 28, 2007) (transcript of broadcast available at 2007 WLNR 12351657). 184 Asian-Pacific Law & Policy Journal [Vol. 10:1 may proceed without approval under a statute, ordinance, or rule. 127 By conducting an EA, however, barge and cruise lines officials would have a better understanding of the environmental impacts of these fleet additions. 128 Barge and cruise lines officials would also be able to carry out alternatives or mitigating measures suggested in an EA to minimize any adverse environmental effects of its fleet-addition plans. Ocean transportation vessels do not constitute the only form of actions significantly affecting Hawaiì’s environment. Other methods of transportation may also affect the environment by, among other things, increasing pollution in the atmosphere. For example, aircrafts pollute the environment. The following section explores the environmental impacts of start-up airlines as another type of action significantly affecting the environment but not requiring an EA. C. Start-up Inter-island Airlines Although using state airports, start-up inter-island airlines fall outside the scope of the HEPA because these privately-owned companies do not require approval under a Hawaiì statute, rule, or ordinance. 129 Rather, a start-up airline requests approval to commence operations under federal guidelines from the United States Department of Transportation and Federal Aviation Administration. 130 In addition, start-up airlines do not construct new facilities at the State’s airport but instead use existing airport facilities. 131 Therefore, start-up airlines do not require an EA before commencing operations. The entrance of go! Airlines’ (go!) into Hawaiì’s inter-island airline market demonstrates the adverse effects an airline may have on the State’s environment which justify expanding the environmental review process. Commencing operations in June of 2006, 132 go! operates sixty flights daily using Bombardier CRJ-200 aircraft. 133 But this increase in the number of seats has created an oversaturated market where many of

127 Wilson, supra note 91. 128 Guidebook , supra note 5, at 43-45 (suggesting that the environmental review process should include biological surveys including an analysis of mitigating species and native species “intactness”). 129 Dave Segal, Hawaii may get another interisland airline , HONOLULU STAR - BULL ., Mar. 15, 2005, at C1. 130 Id. 131 go! Airlines, Hawaii Airports, http://www.iflygo.com/goAirport.aspx (last visited Nov. 6, 2008). 132 Rick Daysog, go! losses triple last 3 months of 2007 , HONOLULU ADVERTISER , Feb. 15, 2008, at A1. 133 Rosemary McClure, See Hawaiian islands on no-frills Go airline , L.A. TIMES , Nov. 12, 2006, at L3. 2008] Kimura 185 go!’s flights depart with empty seats, 134 exacerbating the environmental concerns about go!. These environmental concerns resulting from the start-up of go! or any inter-island airline potentially include the increase in (1) pollutants released into the atmosphere, (2) noise pollution, and (3) invasive species transported between islands. 1. An increase in the number of jet aircrafts operating in Hawaiì would increase pollution in the upper atmosphere The five aircraft of go! pale in comparison in fleet size to Hawaiian Airlines’ eleven inter-island aircraft. 135 But by utilizing aircraft that take- off and land roughly 120 times a day, 136 go! will undoubtedly increase pollution levels in Hawaiì by emitting pollutants such as carbon dioxide, nitrous oxide, sulfate aerosols, and soot into the atmosphere. 137 These gases absorb longer wavelength radiation and trap sunlight in the upper atmosphere, which adds to global warming. 138 Because aircraft release these gases directly into the upper atmosphere, the pollution can affect a large area not limited to the aircraft’s route of flight. 139 Aircraft pollutants can also help to produce acid rain, which affects rainforests and causes urban smog. 140 In addition, constant flights in a concentrated airspace, such as Hawaiì’s, can produce contrails that may significantly affect the climate by trapping heat in the lower atmosphere and raising the temperature of the earth’s surface. 141 Even a slight alteration in daily

134 Monthly load factors for go! average from sixty to seventy percent. See, e.g. , Hawaii carrier has a good October , PACIFIC BUSINESS NEWS , Nov. 6, 2008, available at http://pacific.bizjournals.com/pacific/stories/2008/11/03/daily52.html (go! had a 70.7 percent load factor in November 2008); Traffic up, load down for go! , PAC . BUS . NEWS , Sep. 8, 2008, available at http://pacific.bizjournals.com/pacific/stories/2008/09/08/daily18.html (go! had a 70.6 percent load factor in August 2008); February load factor up to 65% for go! , PAC . BUS . NEWS , Mar. 5, 2008, available at http://www.bizjournals.com/pacific/stories/2008/03/03/daily28.html (go! had a 65.9 percent load factor in February 2008). 135 Rick Daysog, Fare war ‘can easily go’ second year , HONOLULU ADVERTISER , June 3, 2007, at A1. 136 McClure, supra note 133. 137 Allen Pei-Jan Tsai & Annie Petsonk, The Skies: An Airline-Based System for Limiting Greenhouse Gas Emissions from International Civil Aviation , 6 ENVTL . LAW . 763 (2000). 138 Paul Stephen Dempsey, Trade & Transport Policy in Inclement Skies—The Conflict Between Sustainable Air Transportation and Neo-Classical Economics , 65 J. AIR L. & COM . 639, 640 (2000). 139 Id. at 644. 140 Id. at 651. 141 Peter Tyson, Dimming the Sun: The Contrail Effect , NOVA, Apr. 2006, http://www.pbs.org/wgbh/nova/sun/contrail.html (last visited Nov. 6, 2008). 186 Asian-Pacific Law & Policy Journal [Vol. 10:1 temperature ranges can cause a severe detriment to ecosystems. 142 These environmental effects demonstrate the need for start-up airlines to conduct EAs. Through an EA, start-up airlines, the public, and policymakers would be informed of mitigating measures to lessen an airline’s effect on the environment because the OEQC requires that mitigating measures be included in any EA sent to an approval agency. 143 For example, an EA may suggest that an airline use a particular aircraft to lessen an airline’s pollutant production. 144 When deciding to replace its inter-island fleet of McDonnell Douglas DC-9 aircraft in 2001, Hawaiian Airlines turned to Boeing 717-200 aircraft, which is 25 percent more fuel efficient than other models.145 Hawaiian Airlines’ decision to pursue a fuel-efficient replacement fleet demonstrates that start-up airlines have environmentally- friendly alternatives that may not be apparent without an EA. An EA would help start-up airlines become better aware of alternatives that may help the airline reduce the amount of pollutants it releases into the environment. 146 2. New jets would increase noise pollution A start-up inter-island airline would inevitably increase noise pollution in the State. 147 Noise pollution has been declared as one of the most serious environmental problems arising from commercial aviation. 148 Noise pollution affects both the natural and human environments, causing both physiological and psychological effects on the inhabitants of both. 149 For example, noise pollution may cause an increased prevalence of cardiovascular disease in humans and mammals. 150 In addition, an increase in noise pollution directly correlates to an increase in blood

142 Id. 143 Guidebook , supra note 5, at 6, 46. 144 See Dempsey, supra note 138, at 656 (describing how certain aircraft models have lower nitrous oxide outputs). 145 Russ Lynch, Hawaiian’s 717 era takes to skies today , HONOLULU STAR - BULL ., Mar. 15, 2001, at B10. 146 Guidebook , supra note 5, at 46. 147 Dempsey, supra note 138, at 646-47. 148 Id. at 641, 646. 149 Id. at 647. 150 Id. at 648. 2008] Kimura 187 pressure. 151 Through an EA, start-up airlines would be better aware of and could carry out alternatives, such as utilizing quieter engines on aircraft. 152 3. New jets may transport invasive species between islands Like the water vessels, go! and other start-up inter-island airlines may transport invasive species between the Hawaiian Islands. 153 The coqui frogs, stinging nettle caterpillars, and Himalayan raspberry seeds all may be transported in cargo by an inter-island airline because the Hawai`i Department of Agriculture (DOA) only prohibits the transport of potted plants without inspection for inter-island air travel. 154 The DOA has established no other safeguards against invasive species. 155 An EA would help a new or expanding airline establish safeguards to prevent the spread of invasive species, because an EA would require airlines to detail its potential to harm ecosystems and mitigate this harm.156 For example, an EA would assist Mokulele Airlines as it plans to expand inter-island service in November 2008 with jet aircraft. 157 As the preceding discussion on the HSF, barge and cruise line fleets, and start-up inter-island carriers demonstrates, actions falling outside the scope of the HEPA can potentially have a significant effect on the environment, whether by endangering humpback whales, increasing pollutants in the atmosphere, or transporting invasive species that may destroy ecosystems. With an EA, many of these adverse effects can be mitigated or avoided. Therefore, the HEPA must be amended so that actions that have a significant effect on Hawai`i’s fragile environment and use state and county lands must undergo an EA. Fortunately, a viable amendment to the HEPA that would increase greatly review of actions exists.

151 Steven Reinberg, Airplane Noise Boosts Blood Pressure Even During Sleep , HEALTH DAY , Feb. 13, 2008, available at 2008 WLNR 2784127. 152 Id. at 646; Guidebook , supra note 5, at 45. 153 Richard Borreca, Lawmakers setting sail on bill for Superferry , HONOLULU STAR -BULL ., Oct. 24, 2007, at A7. 154 Hawai`i Department of Agriculture, Traveling Interisland, http://hawaii.gov/hdoa/Info/doa_importing/traveler/traveling-interisland (last visited Nov. 6, 2008). 155 Id. ; see also Hawai`i Department of Land and Natural Resources, Invasive Species Watch, http://www.state.hi.us/dlnr/isw/iswhome.htm (last visited Nov. 6, 2008) (recommending but not requiring that travelers avoid packing “plants, fruits, vegetables or illegal animals” when traveling on inter-island flights). 156 Guidebook , supra note 5, at 46. 157 Rick Daysog, Mokulele Air lawsuit against go! alleges anti-competition , HONOLULU ADVERTISER , Nov. 5, 2008, available at http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=2008811050355. 188 Asian-Pacific Law & Policy Journal [Vol. 10:1

IV. PROPOSING A BROADER DEFINITION OF “A CTION ” The definition of “action” in the HEPA should be broadened to include all actions significantly affecting Hawaiì’s environment and using state or county lands. The environmental effects arising from the HSF, vessel additions to barge and cruise line fleets, and start-up inter-island airlines demonstrate the advantages that expanding the EA requirement would have in educating the public, decision-makers, and applicants of an action’s environmental effects. These examples also demonstrate that mitigating measures to lessen an action’s impact on the environment may be available. The following sections further explain this proposal along with its benefits and potential criticisms. A. “Action” Should Include Any Project or Program with a Significant Effect on the Environment Since H.R.S. § 343-2 narrowly defines “action,” 158 the HEPA currently excludes from the review process any government or privately- initiated project or program that does not require approval from the State or counties under a statute, ordinance, or rule. 159 These actions do not require an EA even if triggering one of the “triggering events” under H.R.S. § 343-5. 160 Therefore, the current HEPA omits from the environmental review process many actions having a significant effect on Hawaiì’s environment. 161 H.R.S. § 343-1 states that the HEPA should “ensure that environmental concerns are given appropriate consideration in decision making along with economic and technical considerations.” 162 However, if certain actions having a significant effect on Hawaiì’s environment fall outside the scope of the HEPA and do not require an EA, the HEPA environmental review process does not satisfy this purpose. 163 Changes to the review process must be made to better achieve this purpose. This proposal suggests that the definition of “action” under H.R.S. § 343-2 should be amended from “any program or project to be initiated by any agency or applicant” 164 to “any program or project having a significant effect on Hawaiì’s environment , regardless of whether the applicant requires approval under a statute, ordinance, or rule.”

158 See H.R.S. § 343-2 (1993). 159 H.R.S. § 343-5 (1993). 160 H.R.S. §§ 343-2, -5 (1993). 161 See discussion supra Part III. 162 H.R.S. § 343-1 (1993). 163 See discussion supra Part II.A. 164 H.R.S. § 343-2 (1993). 2008] Kimura 189

“Significant effect” would not require an additional definition because the HEPA already defines it 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 as established by law, or adversely affect the economic welfare, social welfare, or cultural practices of the community and State. 165 Because “significant effect” is broadly defined, actions with even a remote possibility of significantly affecting the environment would be required to undergo an EA under this proposed definition of “action.” This definition of “significant effect” as used with the proposed definition of “action” would help to expand the reach of the HEPA to include more actions in the environment review process. The current exemptions established by the Environmental Council should also be retained. 166 By retaining these exemptions, the OEQC would still have the ability to exempt from environmental review those actions considered to have minimal effects on the environment. 167 This would allow relatively trivial actions to continue without delay or causing an undue burden to the applicant. Retaining these exemptions would also be consistent with the focus of the HEPA to require environmental review of those actions having a “broad and profound effect[ ]” on the environment. 168 Therefore, if an action using state or county lands could potentially have a significant effect on the environment, then these exemptions should not be applied and the applicant should conduct an EA. This amendment to the HEPA may be simple, but it will ensure the protection of Hawai`i’s environment. With a broadened definition of “action,” the HEPA would be significantly expanded to increase the number of actions that would qualify for environmental review. Any action “triggering” environmental review under H.R.S. § 343-5 and having a “significant effect” on the environment would require an EA. 169 For example, under this proposal, actions such as the HSF, additions to barge or cruise line fleets, and start-up inter-island airlines would require an EA because approval under a statute, rule, or ordinance would no longer be necessary to require an applicant to undergo environmental review.

165 Id. 166 Haw. Code R. § 11-200-8 (Weil 1996). 167 Id. 168 H.R.S. § 343-1 (1993). 169 H.R.S. § 343-2 (1993). 190 Asian-Pacific Law & Policy Journal [Vol. 10:1

Potential benefits arising from this proposed change further justify the need for this amendment. The following section discusses these benefits. B. Benefits of Broadening “Action” Most of the benefits of amending the definition of “action” in the HEPA would be realized immediately after enacting this proposal. Benefits arising from this proposed change, as further discussed in the following subsections, include (1) increased protection of Hawaiì’s environment, (2) increased participation by the public in the planning process, (3) reduced intervention by Hawaiì’s legislature and governor, and (4) reduced number of HEPA-related cases arising in the judiciary. These benefits demonstrate how this proposed definition of “action” better meets the HEPA’s purposes more effectively than the existing definition. 1. Increases Protect Hawaiì’s environment The primary benefit of the proposed change would be increased protection of the environment from actions significantly affecting Hawaiì’s environment. An applicant proposing an action formerly falling outside the scope of the HEPA but now requiring an EA would receive information on the environmental effects of its action. 170 Through an EA, an applicant would also receive information on alternatives or mitigating measures that may be carried out to minimize its action’s effects on the environment. 171 Furthermore, the EA would be conducted early in the planning process to provide the applicant with a maximum range of options. 172 This would allow an applicant to easily pursue alternatives, if necessary, because the applicant would only have made basic decisions about a project’s conceptualization and planning. 173 State and county officials would also have enough time to prepare for any adverse effects arising from an action. 174 Therefore, an overall benefit to the environment would result because environmental concerns arising from actions would receive appropriate consideration in the planning process. 2. Public participation in the review process Broadening the definition of “action” in the HEPA would increase public participation and better inform citizens of the adverse environmental consequences of actions. This increase in the exchange of

170 Guidebook , supra note 5, at 6. 171 Id. 172 Citizens for Prot. of N. Kohala Coastline v. County of Haw. , 91 Hawaiì 94, 105, 979 P.2d 1120, 1131 (1999). 173 Id. 174 See Wilson, supra note 119. 2008] Kimura 191 ideas between the applicant, decision-makers, and public regarding actions now falling under the HEPA would foster constructive dialogue between these parties and increase consideration of environmental concerns in the planning process. 175 In addition, the opportunities for interested parties to participate in the planning process would be expanded because more actions would be required to undergo environmental review. Broadening the reach of the HEPA review process would also heighten public awareness of the environment in the planning process. Because actions having a significant effect on the environment but falling outside the scope of the current HEPA would now require EAs, applicants, decision-makers, and the public would have the necessary information “to determine the potential environmental significance of a proposed action.” 176 This information would further help to increase participation in the planning process. 177 In addition, increased communication between all parties may lead the public to instill more trust in Hawaiì’s government institutions in handling conflicts involving the competing interests of applicants and the public. 178 Increased public participation would be consistent with the “public participation” purpose of the HEPA. 179 The “findings and purpose” section of the HEPA recognizes the importance of public participation in the planning process by stating that participation “benefits all parties involved and society as a whole.” 180 In addition, allowing more members of the public to express opinions during the environmental review process would be consistent with the Hawaiì State Constitution, which states that “[e]ach person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including [the] control of pollution and conservation, protection and enhancement of natural resources.” 181 Under an expanded HEPA review process that will ensure increased opportunities for public participation, interested parties would always be able to participate in the planning process to preserve this right to a clean and healthful environment.

175 Thomas C. Beierle & Jerry Cayford, Environmental Decision Making: What Does Public Participation Add? , 28 ADMIN . & REG . L. NEWS 6, 6 (Winter 2003). 176 Kahana Sunset Owners Ass’n v. County of Maui , 86 Hawai`i 66, 71, 947 P.3d 378, 383 (1997). 177 See discussion infra Part IV.E. 178 BEIERLE & C RAYFORD , supra note 175, at 6-15. 179 See Kahana Sunset Owners Ass’n , 86 Hawai`i at 72, 947 P.2d at 384. 180 H.R.S. § 343-1 (1993). 181 HAW . CONST . art. XI, § 9. 192 Asian-Pacific Law & Policy Journal [Vol. 10:1

3. Reduces the need for intervention by the legislature and governor In October 2007, the Hawaiì State Legislature held a special legislative session to exempt the HSF from environmental review because of the HSF’s $650,000 weekly losses as a result of an injunction barring the HSF from docking at Kahului Harbor without a final EA. 182 Responding to both the HSF’s financial losses and Hawaiì Supreme Court’s holding that the DOT should have conducted an EA of its plan to improve Kahului Harbor, 183 state legislators passed an act in a special session exempting the HSF from the reach of the HEPA. 184 Hawaiì’s Governor Linda Lingle signed the act into the law on November 5, 2007. 185 The act allowed the HSF to continue sailing without first conducting an EA. 186 However, under the current proposal, the legislature and governor would not have been burdened by having to exempt any actions related to the HSF from environmental review because HSF officials would have already conducted an EA before commencing operations. If the HSF had already completed an EA, the legislature would have had nothing to exempt. In addition, an EA completed by the HSF would have likely allowed the HSF to commence operations on time. 187 Preventing the state legislature and governor from exempting actions from environmental review would also ensure that environmental concerns arising from actions receive fair consideration in the review process because applicants would no longer have an incentive to lobby legislators with campaign contributions. In the HSF controversy, HSF officials spent incredible amounts of money lobbying state officials, which may have been the driving force behind the legislature’s swift passing of the special session bill exempting the HSF from environmental review. 188 Requiring all actions significantly affecting Hawaiì’s environment to undergo an EA would help to eliminate any legislative or gubernatorial bias because legislative sessions held to exempt actions from the HEPA process would no longer be necessary. Under this proposal, all actions significantly affecting Hawaiì’s environment would require HEPA review,

182 Wendy Osher, Superferry can’t wait for report, says CEO ‘I can’t guarantee the vessel will return if it leaves the state’ , HONOLULU STAR -BULL ., Oct. 5, 2007, at A1. 183 See discussion supra Part II.C.2. 184 Pala, supra note 94; S.B. 1 D1, 24th Leg., 2d Spec. Sess. (Haw. 2008). 185 Wilson, supra note 91. 186 Id. 187 Jaymes Song, Showdown over Hawaii Superferry heats up , USA TODAY , Sept. 18, 2007, available at http://www.usatoday.com/news/nation/2007-09-18- 3766465978_x.htm. 188 Rick Daysog, Hawaii ferry spent $175,000 on lobbying , HONOLULU ADVERTISER , Oct. 14, 2007, at A1. 2008] Kimura 193 regardless of whether an applicant made political contributions to state officials. 4. Benefits Hawaiì’s Judiciary by reducing the number of cases challenging the HEPA’s applicability to actions With a broader definition of “action” in the HEPA, the judiciary would have been burdened with fewer cases in the last decade on the issue of whether an action requires an EA. The Hawaiì Supreme Court has reviewed a number of these cases. 189 Under this proposed amendment to the HEPA, if an action has even a remote possibility of significantly affecting the environment—a broad standard—then the applicant must conduct an EA in the planning phases of the action. This broad standard, then, requires less judicial review of HEPA cases. For example, if HSF officials conducted an EA of its vessel before commencing operations, the HSF would have likely avoided litigation and reduced judicial strain. 190 Without a lawsuit in the circuit courts, the Hawaiì Supreme Court would have had no appellate review of Sierra Club II . The judiciary may also have avoided an appeal by environmental groups in February of 2008, which challenged the Maui Circuit Court’s ruling upholding the constitutionality of the legislative act exempting the HSF from environmental review. 191 Therefore, the benefits of the proposed amendment include increased environmental protection, heightened public participation, less intervention by the legislature and governor, and fewer cases in the judiciary. While these potential benefits demonstrate the need for this change, the proposed amendment would also be consistent with recent decisions of the Hawaiì Supreme Court on issues regarding the HEPA’s applicability to actions. The following section analyzes the similarity of the policy behind the court’s decisions and this proposed amendment to increase review of actions. C. Broadening the Definition of “Action” Would Be Consistent with the Hawaiì Supreme Court’s Direction to Expand the Reach of the HEPA’s EA Requirement The Hawaiì Supreme Court has broadened the reach of the HEPA to increase review of actions. 192 The court demonstrates its willingness to expand the HEPA to include more actions in the environmental review process by broadly interpreting the terms “use of state or county lands” and requiring that secondary impacts of an action be taken into

189 See discussion supra Part II.C. 190 Song, supra note 187. 191 Gary T. Kubota, Foes fight ferry’s environmental OK , HONOLULU STAR - BULL ., Mar. 1, 2008, at A3. 192 See discussion supra Part II.C. 194 Asian-Pacific Law & Policy Journal [Vol. 10:1 consideration in evaluating whether an action should undergo an EA. 193 The purpose behind the proposed definition of “action,” which will result in a greater number of actions requiring an EA, would be consistent with the direction of the Hawai`i Supreme Court to interpret the HEPA more favorably to increase review of actions. The court seems to favor increased review because an EA provides applicants, decision-makers, and the public with the information necessary to make informed decisions addressing the environmental effects of actions in the planning process. 194 Therefore, the court’s willingness to expand the HEPA to increase environmental review of actions demonstrates that the proposed definition of “action” is not far-fetched. Despite this consistency between the proposed amendment and the Hawai`i Supreme Court’s views on the HEPA, applicants may still complain that an expanded environmental review process would be over-burdensome. However, these applicants overlook how an EA would be of greater benefit than detriment. The following section discusses the potential benefits of an expanded review process to applicants. D. Broadening “Action” Would Benefit Applicants The HSF controversy demonstrates that applicants would benefit from an expanded review process. By conducting an EA before commencing operations, HSF officials might have avoided public backlash because an EA would have allowed members of the public to voice concerns in an orderly forum before the HSF commenced operations. 195 HSF officials and interested parties then could have worked together to address environmental concerns and carry out mitigating measures to reduce the HSF’s potential adverse effects on the environment. In addition, by conducting an EA early in the project’s planning stages, HSF officials would have benefited by having a detailed study of its ferry’s environmental impacts, which may have prevented unexpected environmental impacts from hindering its operations. 196 By receiving information early in the planning stages of an action, HSF officials would have been able to avoid burdensome reconsideration of decisions already made. 197

193 See supra notes 64-82 and accompanying text. 194 See Kahana Sunset Owners Ass’n v. County of Maui , 86 Hawai`i 66, 70-71, 947 P.2d 378, 382-83 (1997) (recognizing the importance of the EA in providing the agencies and public with the necessary information “to determine the potential environmental significance of a proposed action”). 195 See Jaymes Song, Superferry sets its own deadline: The company's CEO says information is needed to determine whether it can survive , HONOLULU STAR -BULL ., Sept. 16, 2007, at A17. 196 Song, supra note 187. 197 Id. 2008] Kimura 195

Furthermore, an applicant would benefit by definitively knowing whether it must conduct an EA before commencing its action. In the HSF’s planning stages, opponents of the HSF along with State and HSF officials disagreed over whether the HSF required an EA. 198 Opponents of the HSF argued that the HSF’s application to operate as a water carrier with the State’s Public Utilities Commission should have triggered environmental review, 199 since the HSF used state harbor lands and HSF officials requested approval under H.R.S. § 271G-10. 200 Section 271G-10 requires water carriers to obtain a certificate of public convenience and necessity before commencing operations. 201 On the other hand, State DOT and HSF officials argued that the HSF “fell within the scope of the exemptions of the environmental review law.” 202 The proposed definition of “action” would have eliminated confusion over whether the HSF required an EA. Under the proposed amendment, the HSF would have required an EA. Therefore, the HSF controversy demonstrates that applicants proposing actions having a significant effect on the environment would benefit considerably and avoid confusion by simply conducting an EA in the action’s planning stages. Despite these benefits, applicants may argue that broadening the definition of “action” would promote “NIMBYism.”203 But public retaliation against actions resulting from NIMBYism would benefit rather than hurt Hawai`i’s environment. E. NIMBYism Would Benefit Rather Than Hurt the Environment By increasing opportunities for the public to participate in the planning process, this proposal to broaden the definition of “action” may result in NIMBYism, a form of public opposition to actions by individuals simply because the actions occur in the back yard or community of the individual. Situations involving NIMBYism often arise in Hawai`i because of its fragile environment. 204 For example, Molokai residents exhibited NIMBYism twice in recent years. 205 First, a proposed development by the Molokai Ranch to build a 200 home subdivision on

198 Derrick DePledge, State wanted review for Superferry in '04 , HONOLULU ADVERTISER , Jan. 6, 2008, at A1. 199 Id. 200 H.R.S. § 343-5 (1993). 201 See H.R.S. § 271G-10 (1993). 202 DePledge, supra note 198. 203 “NIMBY” stands for “not in my back yard.” Inverse Condemnation, http://www.inversecondemnation.com (last visited Oct. 28, 2007). 204 Martin Kasindorf, Land-Use Debate Ugly in Paradise , USA TODAY , Mar. 22, 2007, at 3A, available at 2007 WLNR 5404774. 205 Id. 196 Asian-Pacific Law & Policy Journal [Vol. 10:1

Molokai drew strong NIMBY reactions by residents in early 2007. 206 Second, in 2003, 200 residents prevented a cruise ship from becoming the first of its kind to dock on Molokai. 207 Recent protests against the HSF on Kauai and Maui can also be attributed to NIMBYism. 208 Applicants may argue that NIMBYism would restrict an action from moving forward in the planning process because the public would be empowered through expanded opportunities for participation to cause disruptions to actions. 209 While NIMBYism may encourage members of the community to retaliate against actions, occurrences of NIMBYism resulting from an expanded review process would benefit the environment in two ways. First, NIMBYism would allow applicants and interested parties to closely work together to address an action’s effects on the environment. Second, by engaging interested parties in the planning process, NIMBYism would increase transparency of actions to and raise the environmental consciousness of the public. 1. Dialogue among applicants and interest parties resulting from NIMBYism would benefit the environment Hostile clashes between interested parties and applicants may result from NIMBYism because interested parties may revolt against any action having a detrimental impact on one’s neighborhood. 210 However, NIMBYism resulting from an expanded environmental review process would likely help to foster dialogue among applicants and interested parties with regard to the environmental effects of actions. Interested parties who wish to protest actions as a result of NIMBYism may express concerns directly to applicants through the mandatory public comment period in the planning process. 211 Applicants and interested parties can then closely work together to address these concerns while “resolv[ing] conflict, increas[ing] trust, and increas[ing] . . . knowledge of the issues under discussion.” 212 Furthermore, because expanding the review process would increase the number of actions requiring an EA, interested parties can work with a greater number of applicants to address environmental concerns without resorting to hostile protests. 213 Therefore, increased

206 Id. 207 Id. 208 Christie Wilson, Hawaii Superferry’s woes likely to continue , HONOLULU ADVERTISER , Oct. 9, 2007, at A1. 209 Id. 210 See Kasindorf, supra note 204. 211 Guidebook , supra note 5, at 15. 212 See BEIERLE & C RAYFORD , supra note 175, at 6-15. 213 See id. 2008] Kimura 197 dialogue among all parties as a result of NIMBYism would allow applicants and interested parties to better ensure that environmental concerns arising from actions receive proper consideration in the planning process. 2. Increased exposure of actions to the public resulting from NIMBYism would benefit both the planning process and environment NIMBYism resulting from an expanded review process would increase exposure of environmentally significant actions to the public because more actions would be publicized in the planning process. Increased exposure of the public to actions significantly affecting Hawaiì’s environment would help to better ensure the environment’s future because “the degree of participation affects the quality of the [review] process, which in turn affects the quality of the decision[-making] about a project.” 214 In addition, these interested parties would better understand the “potential environmental ramification” of actions and needs of the environment. 215 Since all actions undergoing environmental review must be published in The Environmental Notice , a newsletter published by the OEQC, interested parties would be able to easily determine which projects may potentially have an adverse effect on one’s neighborhood. 216 Increased transparency of actions by way of NIMBYism would also bolster the credibility of the HEPA review process among the public because a greater number of “private and unsophisticated people [would] speak to values rather than clouded issues lost in technical evidence.” 217 Furthermore, public discussion may cause “voluntary abandonment” of actions having adverse consequences on the environment. 218 Therefore, NIMBYism resulting from increased review of actions would likely produce results favorable to protecting the environment. The previous discussion demonstrates that the proposed amendment to broaden the definition of “action” would substantially benefit Hawaiì’s environment by ensuring that environmental concerns arising from all actions significantly affecting Hawaiì’s environment and using state or county lands receive proper consideration in the planning process. Applicants, decision-makers, and the public would also realize

214 William A. Tilleman, Public Participation in the Environmental Impact Assessment Process: A Comparative Study of Impact Assessment in Canada, the United States, and the European Community , 33 COLUM . J. TRANSNAT ’L L. 337, 346 (1995). 215 See B EIERLE & C RAYFORD , supra note 175, at 6-15 (finding that “[i]n 77% of cases [studied by the authors], the process of participation significantly increased participant's understanding of the issues.”). 216 See Guidebook , supra note 5, at 15. 217 Tilleman, supra note 214, at 343. 218 Knapman, supra note 8, at 733. 198 Asian-Pacific Law & Policy Journal [Vol. 10:1 benefits arising from this proposed amendment. Concerns regarding increased retaliation by the public because of greater opportunities for participation would benefit rather than burden applicants. Therefore, the benefits of the proposed amendment to expand the reach of the HEPA review process justify the need for this amendment. V. CONCLUSION In her 2005 State of the State address, Governor Lingle stated that this era in Hawaiì’s history “[would] be seen as a time when environmental protection was approached with seriousness of purpose and sufficient resources.” 219 Unfortunately, under the current HEPA, many actions significantly affecting Hawaiì’s environment commence without an environmental review that can educate interested parties about an action’s adverse effects on the environment. 220 The HSF, vessel additions to barge and cruise line fleets, and inter-island start-up airlines demonstrate the impacts an action can have on Hawaiì’s environment. 221 Unless applicants conduct EAs for these and all similar actions in the planning stages, irreparable harm to the environment may result. Amending the definition of “action” to include all actions significantly affecting Hawaiì’s environment in the environmental review process would help to prevent irreparable harm to the environment. Under this amendment, applicants, decision-makers, and the public would be better educated of the environmental effects of actions adversely affecting Hawaiì’s environment and could work together to preserve the environment by pursuing alternatives or employing mitigating measures. This amendment would ensure that Hawaiì’s environment receives appropriate consideration in the planning process. With Hawaiì rapidly becoming the “biggest ecological catastrophe in the United States,” 222 the Hawaiì State Legislature must quickly enact measures to protect Hawaiì’s fragile environment, even if as simple as an amendment to the HEPA’s definition of “action.”

219 Linda Lingle, Governor of Hawai`i, State of the State Address at the Hawai`i State Capitol (Jan. 24, 2005), available at http://hawaii.gov/gov/leg/2005/2005%20State%20of%20the%20State. 220 See discussion supra Part III. 221 Id. 222 Allen, supra note 1.