Final Report on Hawaiiʼs Environmental Review System
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FINAL REPORT ON HAWAIIʼS ENVIRONMENTAL REVIEW SYSTEM Prepared for the Hawaii State Legislature October 2010 Karl Kim Denise Antolini Peter Rappa Scott Glenn Nicole Lowen University of Hawaii This report was prepared for the Hawaii State Legislature, pursuant to Act 1, Session Laws of Hawaii 2008. The contents reflect the views and opinions of the authors. For additional copies of the report, visit http://HawaiiEISstudy.blogspot.com or contact: Department of Urban and Regional Planning University of Hawaii Saunders Hall 107 2424 Maile Way Honolulu, Hawaii 96822 Telephone: (808) 956-7381 Facsimile: (808) 956-6870 Executive Summary For forty years, Hawaii’s environmental review system has served the State by ensuring public disclosure of environmental impacts prior to agency decision-making on programs and projects. Environmental review has been a valuable and necessary tool for planning and development, and has led to the mitigation of environmental impacts. The system, however, has undergone few changes since its establishment, even as environmental review practice has continued to evolve in other states, at the federal level, and in other countries. Stakeholders of the current system have different views on specific problems and solutions, but there is a shared sense that the system is in need of change. This report, prepared for the Hawaii State Legislature, constitutes a comprehensive assessment of Hawaii’s environmental review system. The report includes background information about the process, including legislative history and a summary of judicial decisions. It includes a description of the study process, analyses of issues with Hawaii’s environmental review system, and the study team’s recommendations for reform. The goals of the review system, as identified in Hawaii Revised Statutes Chapter 343 and through this study process, are to protect the environment, to support good decision- making, to enhance public participation, to integrate with planning, and to provide clarity and predictability in how the law is applied. Although stakeholder opinions differ as to how these goals should be implemented, they support the purpose behind each goal. In recent years, the system has focused less on these goals and more on process and litigation. This has resulted in several areas of major concern to stakeholders. The study has developed recommendations to address these concerns and improve the system. First, the current “applicability,” or screening, system no longer constitutes a rational approach to determining which actions are subject to review under Chapter 343. Hawaii uses a “trigger” system that lists specific types of projects or locations, which does not directly link the potential for impacts to decision-making. In contrast, the “discretionary approval” systems used in other U.S. states initially screen all “major” actions (including those requiring discretionary approval), and then exempt those actions that are ministerial or without significant impacts. This report recommends that Hawaii streamline its environmental review system by replacing the current “project triggers” with a “discretionary approval screen.” Under this proposal, environmental review would apply to government and private actions tied to an agency discretionary approval process (for example, permits) with a narrowed focus on those that “may have adverse environmental effects.” To increase efficiency, the study also recommends streamlining the exemption system and allowing project proponents to bypass the Environmental Assessment (EA) process and proceed to Environmental Impact Statement (EIS) preparation when warranted. Second, the State’s governance system for the environmental review process has become dysfunctional. Under-funded and under-staffed, the Office of Environmental Quality Control (OEQC) is unable to provide needed guidance, training and education. The State Environmental Council has had difficulty updating the administrative rules and reviewing i exemption list requests. The Environmental Center is under-supported. Without effective leadership and support, the system cannot function. Recommendations include clarifying the authority, structure and roles of OEQC, the Environmental Council, the Department of Health, and the Governor with respect to the environmental review system; requiring OEQC to undertake regular outreach, education, and training for both the public and agencies; requiring OEQC to maintain modern communication and information management systems; and establishing a fee system and a temporary special fund to supplement the budget of OEQC to facilitate these changes. Third, stakeholders are concerned that the late initiation of scoping, consultation, and public participation processes means that the information provided by the public and agencies has less influence on planning decisions. The earlier that participation occurs, the more potential it has to improve the quality of review and to affect decision-making. Early participation and scoping ensures impacts of concern are addressed and minimizes future conflict and litigation. Stakeholders also identified issues with the interagency and public comment-and-response process. Guidance on the process is lacking and document review is inconsistent. More clarity about expectations will help to increase accuracy, objectivity, and quality of information. Recommendations address these issues by clarifying the purpose, process, requirements, and timing for adequate scoping, notification, and commenting. Stakeholder concerns about voluminous and repetitious comments are addressed by allowing consolidation of responses. Finally, concerns about the required contents of documents and about process issues that have arisen repeatedly are addressed. Concerns about mitigation implementation are addressed by this study’s recommendations. Recommended follow-up systems will aid future system assessment and provide information to stakeholders on the effectiveness of mitigations and the accuracy of impact estimation. The implementation of a Record of Decision (ROD) process will provide a framework for tracking proposed mitigation. Other issues are addressed by strengthening rules and guidance, providing more clarity and specificity about the requirements of the process. Content requirements for cumulative effects assessment, climate change issues and cultural impact assessment are discussed. Rules on “shelf life” and supplemental documents are clarified. Although the State’s environmental review system can be substantially improved, it must be understood that even an improved system will be subject to the inherent limitations of environmental review. These limitations include that it is not a substitute for other policy tools aimed more directly at resource management, long-range planning, or policy implementation, and that it is an information disclosure process that does not mandate an agency’s ultimate decision. The environmental review system is also unavoidably influenced by the surrounding political climate. However, in conjunction with other planning processes, the environmental review system plays an important role in information disclosure and environmental quality maintenance, and provides many benefits to the public and to government. This study’s recommendations will strengthen this role. ii Table of Contents Executive Summary........................................................................................................... i! Table of Contents .............................................................................................................iii! List of Acronyms............................................................................................................viii! 1. Introduction................................................................................................................... 1! 1.1! Origins of the Study ............................................................................................................1! 1.2! Purposes of the Study..........................................................................................................2! 1.3! Structure of the Report........................................................................................................2! 1.4! The Study Team ..................................................................................................................3! 2. Background and Context ............................................................................................. 4! 2.1! Environmental Review System in Hawaii ..........................................................................4! 2.2! Purpose of the Law..............................................................................................................4! 2.3! Goals of the Environmental Review Process......................................................................5! 2.4! Summary of Legislative History Since 1991 ......................................................................6! 2.5! Trends in Hawaii’s Environmental Review System ...........................................................7! 2.6! Summary of Judicial Decisions.........................................................................................10! 3. UH Study Process........................................................................................................ 29! 3.1! Review of Literature and Best Practices ...........................................................................30! 3.2! Review of Legal Aspects