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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. Hawai`i 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 Hawai`i 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 Hawai`i 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 Hawai`i’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 Hawai`i’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 Hawai`i 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 Hawai`i’s fragile environment in recent decades. 1 To combat the damaging effects of development on the environment, state legislators passed the Hawai`i 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 Hawai`i’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 Hawai`i’s environment. For example, despite using state lands, the Hawai`i 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 Hawai`i’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 Hawai`i’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 Hawai`i 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 Hawai`i’s environment. Part II explains the HEPA, focusing on its purposes, procedural requirements, and application by the Hawai`i 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 Hawai`i’s environment and the planning process. Part V emphasizes the pressing need for this change in order to ensure the protection of Hawai`i’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

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