Monday, August 18, 2008

HEPA Applies to Actions Regulated by Other Statues Unless Expressly Exempt

The latest Hawai‘i Environmental Policy Act (HEPA) opinion comes from Hawaii’s Intermediate Court of Appeals (ICA) in ‘Ohana Pale Ke Ao v. Board of Agriculture, State of Haw., 2008 WL 2124075 (Hawai'i App., 2008). Issues covered include when a regulatory statute cannot trump the HEPA statute and when the scope of a past EIS will not cover certain future proposed actions.

‘Ohana Pale Ke Ao (OPKA) challenged the Board of Agriculture’s issuance of a permit to Mera Pharmaceuticals (Mera), a marine biotechnology firm operating at the Natural Energy Laboratory of Hawai‘i on the Big Island.

In short, the Board approved Mera's permit application to import into Hawai‘i test-tube cultures of eight genetically engineered strains of alga for large-scale production in outdoor photobioreactors. However, OPKA challenged issuance of the permit, because the Board failed to require Mera to conduct any environmental review under HEPA. The Board’s position is that HEPA compliance is not a required prerequisite, because “HRS chapter 150A establishes a comprehensive and exclusive process for the issuance of permits for importing microorganisms” and review of Mera's permit application “included the essential components of the HEPA review process.”

The ICA (J. Watanabe writing for the court) disagreed with the Board holding that (1) HEPA required the preparation of an environmental assessment (EA) before the Board could approve Mera's application; (2) the statute on the importation of microorganisms did not exempt the Board from the requirement that an EA be prepared; and (3) prior environmental impact statements (EISs) issued for NELH did not cover approval of the permit that Mera sought.

First, the ICA opined that the existing facilities are located at the NELH, which is on state lands. Furthermore, Mera’s proposal

. . .constitutes an action that proposes the use of state land. [Therefore,] [w]hile HRS chapter 150A and the Board's Microorganism Import Rules may vest the Board with exclusive authority to approve Mera's proposal to import and grow the GE algae at NELH, HRS § 343-5 plainly and unambiguously required preparation of an EA before the Board could approve Mera's application.
Second, the ICA opined that “there is no provision in either HRS chapter 150A or chapter 343 that expressly exempts the Board from complying with HEPA when it acts on an application for a permit to import microorganisms.” (Emphasis added.)

Third, the ICA disagreed with the Board’s contention that two prior EIS documents prepared for NELH’s construction covered the actions proposed by Mera. In particular,
[t]here is no discussion in the 1985 EIS regarding the production of micro-algae in photobioreactors. There is also no discussion about the potential environmental impacts of large-scale production of micro-algae in raceways, tanks, or ponds, which the EIS mentions are feasible operations at NELH or HOST parks. Additionally, due to the uncertainty as to which tenants would ultimately locate to the parks, any discussion of potential impacts of future micro-algal projects was necessarily general.
This case stands for the proposition that preparing documents and studies that are "like" HEPA will not suffice for actually complying with the procedural requirements of HEPA under HRS Chapter 343.

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