Wednesday, June 4, 2014

Appeals Court Affirms Sufficiency of Environmental Impact Statement Related to Landfill Expansion

Waimanalo Gulch Sanitary Landfill
In short, the City and County of Honolulu decided to expand the size and operation of the Waimanalo Gulch Sanitary Landfill.  Not all in the community supported this effort.  Administrative and judicial challenges to stop the project occurred on several fronts.  This blog entry deals with challenges to the final environmental impact statement (EIS) that was prepared for the project.

In Hanabusa v. Department of Environmental Services of the City and County of Honolulu, ICA No. 30517, May 30, 2014, Plaintiff challenged the project's Final EIS on the following grounds:

  1. The Final EIS concealed and failed to adequately address the true nature of the project (primarily as it relates to size); and
  2. The Circuit Court erred in failing to address each of the allegations in Plaintiff's complaint regarding the insufficiency of the Final EIS.
The Intermediate Court of Appeals (ICA) disagreed with Plaintiff and affirmed the Circuit Court's judgment in favor of the City.

Notable takeaways from the decision are:
  • The argument by Plaintiff that the City promised to close the site by 2008, but instead proposed expanding and continuing use "until capacity . . . is reached" did not have any weight on the ICA's review of the adequacy of the EIS.  
  • In practice, there has always been some grey area about the extent to which the Hawaii Environmental Policy Act (HEPA) can tier off of previous environmental documents (like EIS preparers often do for similar NEPA documents).  In this case, the ICA looked favorably on the fact that the EIS referred to previous EIS documents and studies related to the site.
  • Plaintiff was barred from raising an EIS challenge to the scope of the Final EIS, because Plaintiff did not raise that issue in Plaintiff's EIS comments.
  • When a plaintiff alleges that an EIS does not take a "hard look" at environmental factors, the burden is on the plaintiff to (1) provide significant details or arguments with respect to those claims, or (2) cite persuasive legal authority.
Additional background on this matter can be found in the article entitled, Hawaii Supreme Court Remands Landfill Decision to State Land Use Commission based on Unsubstantiated Closure Date Requirement.

No comments: