Hawaii Environmental Reform Bill Passes Committee with Amendments

On February 9, 2010, the Senate Committee on Energy and Environment ("ENE") recommended that SB2818 pass with amendments.

Summary of Bill Considered by ENE.

SB2818 is part of a package of bills proposing major changes to the Hawaii Environmental Policy Act ("HEPA").  The proposed bill is based on a University of Hawaii study prepared for the legislature entitled, Report to the Legislature on Hawaii's Environmental Review System. Changes proposed in SB2818 include:

• Moving the office of environmental quality control ("OEQC") from the department of health to the department of land and natural resources ("DLNR");
• Reducing the number of members in the environmental council from 15 to 7 members;
• Exempting the rule-making process from public notice, public hearing, and gubernatorial approval requirements for so called, "interim rules";
• Creating an environmental review special fund and additional filing and administrative fees;
• Adding a broad definition of "significant adverse effect on the environment" based on 14 enumerated factors;
• Expanding applicability of HEPA to all "actions that require discretionary approval from an agency and that may have a probable, significant, and adverse environmental effect";
• Requiring a record of decision ("ROD") similar to that required by NEPA (see e.g., FHWA ROD and EPA ROD);
• Requiring environmental monitoring by agencies;
• Defining "action" to not include ministerial actions (e.g., building permits);
• Defining "cumulative impacts", which would include "individually minor but collectively significant actions taking place over a period of time";
• Defining "Secondary effects" and "indirect effect", which would include "effects that are caused by an action and are later in time or farther removed in distance, but are still reasonably foreseeable";
• Allowing "tiering" and "programmatic" environmental documents;
• Providing for electronic documents;
• Prescribing page limits (cf. Price v. Obayashi, opining that length of document "demonstrate[s] . . . good faith efforts to set forth sufficient information to enable the decision‑maker to consider fully the environmental factors involved"); and
• Expanding potential litigants to include, by definition, those who comment on environmental assessments.

Public Testimony Heard by ENE.

Here is a sampling of some of the testimony provided at the ENE hearing (click on the testifier's name for a direct link to the actual testimony submitted to ENE):

• State Attorney General. Opposed. "The bill would adopt a wholly different approach, mandating environmental reviews wherever a proposed action requires 'discretionary approval from an agency' and 'may have a probable, significant, and adverse environmental effect.' While the current system needs reform, this proposal would make things even worse. This set of radical changes could harm both property development and environmental protection in Hawaii."
• Earthjustice. Opposed. "[N]oted several items of concern that suggest this proposal requires further vetting before being taken up by the Legislature." Their concerns include that the bill's "proposed trigger conflicts with the existing definition of, 'environmental assessment'"; the bill establishes a more "demanding trigger for preparation of an EA than for an environmental impact statement"; and the bill proposes "strict page limits".
• Lee Sichter. Opposed. Provides a comprehensive review of the bill including recommendations.
• Land Use Research Foundation. Opposed. "Don't need to fix' something that ain't broken."
• Department of Land and Natural Resources. Opposed. "The Department does not have the staff or resources to support a new mandate created by transferring the program functions of OEQC and the Environmental Council from DOH to the Department of Land and Natural Resources."
• Department of Budget and Finance. Opposed. "[D]oes not support the creation of any special or revolving fund which does not meet the requirements of Sections 37-52.3 and 37-53.4 of the Hawaii Revised Statutes."
• Office of Environmental Quality Control. Opposed. Study is not final, "allow OEQC to submit changes to the proposed amendments, once the final version of the university study has been submitted."
• Environmental Council. Supported. "All of the operational difficulties and challenges currently faced by the Environmental Council would be corrected through the cumulative actions proposed in SB2818."
• Department of Planning and Permitting, City and County of Honolulu. Opposed. "[O]pposes two of the proposals contained in Senate Biil 2818, in particular that lead agencies inciude conditions established in an environmental impact statement (EIS), and that an EIS or environmental assessment (EA) shall have a duration of not more than seven years."
• Chamber of Commerce of Hawaii. Opposed. "While we understand the need for a review of Chapter 343 HRS, we believe that the review should focus on fixing specific problems rather than assuming that the entire statute needs to be revised."
• Alexander & Baldwin, Inc. Opposed. "[R]evision will result in a huge and we believe unnecessary increase in the number of actions requiring environmental review - particularly while the new and greatly expanded exemption lists that will be required are being developed - and may exacerbate one of the perceived "problems" that the bill purports to address."
• Hawaii Farm Bureau Federation. Opposed. "[W]e do not believe that SB 2818 will make the process more streamlined, transparent, consistent, or efficient."
• Building Industry Association of Hawaii. Opposed. "[W]e prefer and support the language in SB 2830 Relating to Environmental Protection as that bill reflects our suggested revisions to SB 2818."
• Nature Conservancy. Supported. "[S]upports the intent of S.B. 2818, particularly the effort to streamline the environmental review process with a discretionary approval screen, and significance and applicability criteria." Proposes more lenient environmental review for so called "conservation work."
• Hawai'i Chapter of the Sierra Club. Opposed. "[M]easure creates tremendous uncertainty as to what projects are subject to environmental review, damages the careful balance struck by Hawaii's current three-decade old environmental protection act, and may expose Hawai'i's fragile environment to irreparable harm."

ENE Amendments.

After hearing the above public testimony and considering the bill as proposed, ENE decided to, among other things, amend SB2818 by deleting the transfer of OEQC and environmental council to the department of land and natural resources, and changing the composition of the environmental council to 9 members. A significant amendment includes requiring an EIS to be revisited if it is 10 years old.

ENE created a working group to to review further changes to SB2818 during the legislative session. The group is comprised of the following: UH Study Team, OEQC, Chair of the environmental council and a member with planning expertise, Building Industry Association of Hawaii, Sierra Club-Hawaii, Land Use Research Foundation, Earth Justice, Belt Collins, and Nature Conservancy.

Next Steps.

A complete ENE committee report describing ENE's above actions will be posted in the coming weeks. SB2818 is scheduled to be heard by the Senate Committee on Water, Land, Agriculture, and Hawaiian Affairs ("WLH") today at 2:45 p.m. in conference room 229; however, it may be deferred.  If the bill is reported out of WLH, it must be heard and reported out of the Senate Committee on Ways and Means before it crosses over to the House for its consideration.

For more on environmental issues and the legislature, see Legislative Updates and Environmental Law.