Wednesday, May 27, 2009

No Substantive Change in Proposed Action, no Supplemental EIS.

Overruled

United Here! Local 5 v. City and County of Honolulu (ICA May 22, 2009)

Background. In the 1980s Kuilima owned a resort on the north shore of Oahu. Kuilima proposed a project that would expand the existing hotel, build three new hotels, a golf course, condominiums, clubhouse, tennis courts, and an equestrian center. The project also included a number of public improvements like a wastewater treatment plant, new wells, and highway improvements. Kuilima submitted an environmental impact statement for the project in 1985, which included projected studies up to the year 2000. The EIS mentioned the impact on sea turtles, but did not mention any impact on the Hawaiian monk seal. Only certain aspects of the project was completed. In 2005 no major construction for the project had started. However, Kuilima submitted to the county's Department of Planning and Permitting an application for a subdivision for 744 acres of the 804-acre property. The DPP received two letters requesting the DPP to order the preparation of a supplemental EIS for the subdivision. The DPP's position was that because the initial project had no time limitation, a supplemental EIS was unnecessary to address any changed circumstances. The State of Hawai'i Environmental Council took the position that a supplemental EIS should be prepared. The DPP, however, accepted the application without the supplemental EIS. Various plaintiffs filed a lawsuit seeking declaratory and injunctive relief for the failure to order a supplemental EIS. The circuit court granted Kuilima's motion for summary judgment on the grounds that there was no evidence showing a substantive change in conditions that would trigger a supplemental EIS. The plaintiffs appealed.

Only a Substantive Change in the Proposed Action Triggers a Supplemental EIS. An EIS is required before a development project can commence once certain criteria are met. Sierra Club v. Dep't of Transportation, 115 Hawai'i 299, 306, 167 P.3d 292, 299 (2007). Once an EIS has been accepted, "no other statement for the proposed action shall be required." HRS § 343-5(g). The supplemental EIS is a creature of administrative rules, not the Hawai'i Environmental Protection Act (HEPA). A "supplemental" EIS is prepared "for an action for which a statement was previously accepted, but which has since changed substantively in size, scope, intensity, use, location, or timing, among other things." HAR § 11-200-2.

According to the ICA, the supplemental EIS calls for a two-step inquiry: (1) whether the proposed action changed substantively in size, scope, intensity, use, or timing; and (2) if so, whether the change will have a significant effect and result in individual or cumulative impacts that were not originally disclosed in the EIS. HAR § 11-200-26. The ICA explained that a "substantive change" arises when the "proposed action . . . has been modified to the extent that new or different environmental impacts are anticipated." HAR § 11-200-27. The ICA explained that "[n]o other reading of the rules is possible" because the rules must be consistent with the mandate that once the initial EIS has been accepted "no other statement for proposed action shall be required." HRS § 343-5(g); Capua v. Weyerhauser Co., 117 Hawai'i 439, 446, 184 P.3d 191, 198 (2008).

Rejecting Foreign Jurisdictions. The ICA rejected the plaintiffs' argument that a supplemental EIS is required when there are changes in the intensity of environmental impacts or there are new circumstances or evidence. Plaintiffs relied significantly on federal law--NEPA--and California environmental law statutes. The ICA pointed out that these statutes were significantly different than HEPA and its regulations and were not persuasive. Judge Nakamura found support for his position in federal law and in California legislation.

Time was not on Their side. The ICA wrote that the only "substantive change" alleged by the plaintiffs was a matter of "timing" and that there was an increase in traffic. The ICA held that there was no evidence supporting a finding of a substantive change in the project itself from the 1980s and affirmed the circuit court.

Judge Nakamura's Dissent. A supplemental EIS, according to Judge Nakamura, is required when the proposed action becomes "an essentially different action." HAR § 11-200-26. Judge Nakamura pointed out that a supplemental EIS "shall be warranted when . . . new circumstances or evidence have brought to light different or likely increased environmental impacts not previously dealt with." HAR § 11-200-27. Based on this language, Judge Nakamura believed that there can be instances where the changed circumstances or discovery of new evidence create "an essentially different action" even though the proposed design of the project or action remains unchanged. He gave an example. What if, posed Judge Nakamura, a hurricane ravaged the North Shore and changed the conditions surrounding the area and its ability to accommodate more residents and visitors? The design of the proposed action, however, had not changed. In that scenario, Judge Nakamura wrote that the agency would be "powerless to order the preparation of an SEIS even if the discovery of new information or evidence brings to light significant environmental impacts that had not been previously disclosed."

The ICA majority commented on HAR § 11-200-27. It stated that that language--which was relied upon by both Judge Nakamura and the plaintiffs--does not change the fact that the other rules call for a substantive change in the proposed action before considering the changed circumstances and evidence. Judge Nakamura, however, believed that the rules were at a minimum ambiguous and that reading them so that a supplemental EIS is triggered only when the design of the project is changed would lead to absurd results.

Judge Nakamura also believed that, based on its erroneous reading of the rules, the DPP did not follow proper procedures and failed to take a "hard look" at the evidence before it. Thus, the DPP erred and the circuit court erred in affirming. Price v. Obayashi Hawaii Corp., 81 Hawai'i 171, 182 n. 12, 914 P.2d 1364, 1375 n. 12 (1996); Sierra Club v. Dept. of Transp., 115 Hawai'i at 342, 167 P.3d at 355. Judge Nakamura concluded that the record does not reveal enough evidence to show whether the changed circumstances or the new evidence that has surfaced since the 1985 EIS were so significant that Kuilima's application for the subdivision required a supplemental EIS.

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