Sunday, May 25, 2008

"Action"-packed Algae not Covered by old EIS.

Ohana Pale Ke Ao v. Board of Agriculture (ICA May 21, 2008)

Background. Mera Pharmaceuticals has been a tenant on a science and technology park owned by the State just outside of Kailua-Kona on the Big Island since 1995. The park itself was subject to an environmental impact statement (EIS) in 1976 to address the "support facilities" of the park and again in 1985, which recommended aquaculture products, including the housing of algae. In 2004 and 2005, Mera requested from the Board of Agriculture a permit to import genetically-modified strains of an micro-algae primarily to determine if the algae would have therapeutic value (algae often is the basis for antibiotics). Mera was required to get a permit from the Board for this particular kind of algae. HAR § 4-71A-22. The Board approved the permit without preparing an environmental assessment. Environmentalist organizations filed a lawsuit seeking declaratory judgment and injunctive relief on the grounds that the approval by the Board violated the Hawai'i Environmental Protection Act (HEPA). The circuit court affirmed; the Board appealed.

Exclusive Authority v. Unlimited Authority. When an "action" proposing the use of state or county lands requires agency approval, that agency must prepare an environmental assessment first. HRS § 343-5. The Board is such an agency and Mera is such an applicant. The ICA also concluded, over the Board's contention, that importation of genetically-modified algae was such an "action." The ICA held that even though HRS chapter 150A and the Board's importation rules vest the Board with exclusive authority to approve the permit, the plain language of the HEPA provision still required the Board to prepare an environmental assessment before exercising that authority. In other words, the Board's argument is a non sequitur. Just because an agency has exclusive authority to do something does not mean that it can exercise that authority without limitation. Even though the Board is the only agency that can give Mera the permit, it still has to comply with HEPA before approving the permit.

Indulgent Dictum? The ICA also pointed out that, based on the policy statement in HRS § 343-1, the legislature intended to "monitor human activity that poses a threat to the quality of the environment, upon which we depend for our collective well-being." This quick foray into legislative intent was sheer indulgence. The ICA noted that it "need not consider it, given the plain language" of the operative statute. This only further suggests that if the language is plain (and the result not absurd), the analysis is over.

When no Conflict, BOTH Apply. The Board also argued that the legislature intended the comprehensive controlling statutes in HRS chapter 150A to constitute an "exclusive mechanism" for importing the algae. When a general statute and a more specific one covering the same subject matter create a "plainly irreconcilable" conflict, the general statute must yield. In re Doe, 109 Hawai'i 399, 409, 126 P.3d 1086, 1096 (2006). However, when the statutes simply overlap in application, effect will be given to both whenever possible, "as repeal by implication is disfavored." Id. According to the ICA, nothing in HRS chapter 150A conflicts with chapter 343; they do not conflict and both can be given effect. The Board, therefore, must prepare the environmental assessment before acting on Mera's permit.

The ICA invoked a rule of statutory interpretation that seeks to give effect to all statutes in order to avoid a "repeal by implication." This must be a rarely-invoked rule. How often do statutes that cover the same ground conflict at all (let alone "plainly and irreconcilably" conflict)? In this case, the statutes do not even remotely conflict. The fact that an agency has exclusive authority to conduct an action does not mean that it can exercise that authority without limitation. Here, the limitation is the HEPA.

Reviewing the EIS. The ICA also rejected the Board's claim that that approval of the algae importation permit was addressed by the two prior EISs. Specifically, the Board argued that the 1985 EIS acknowledged that the state facilities would be used for algae and microalgae production and the permit for genetically-modified algae instead of non-modified algae is an irrelevant distinction. The ICA reviewed both EISs and disagreed. The 1976 EIS focused on the construction of the support facilities and infrastructure needed to start developing the technology park for energy research and other projects. At the time, the tenants of the park were unknown and it even indicated that "[f]uture projects of significance will each require an EIS." The 1985 EIS did discuss algae production, but it did not examine the large-scale production of micro-algae in reactor tubes, ponds, or other facilities on the park. Both EISs, according to the ICA, indicate that as the nature and details of individual projects became clearer, further HEPA review was expected. Whether a prior EIS covers an action triggering HEPA review is a seldom-raised issue. That would make the ICA's review of the two EISs quite significant.

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