Hawaii Supreme Court Says "Timing of the Action" may be Considered a Significant Effect

The Hawaii Supreme Court recently issued a seminal decision on when a supplemental EIS is required under the Hawaii Environmental Policy Act ("HEPA"). See Unite Here! Local 5 v. City and County of Honolulu, Haw. S. Ct No. 28602, April 8, 2010.

As more fully described in Appellate Court Issues Opinion in Turtle Bay EIS Case, this case involves an EIS that was accepted by the City's Department of Planning and Permitting ("DPP") in 1985. The EIS studied the environmental impacts of the proposed Turtle Bay resort project which included approximately 1,450 hotel rooms, a golf course, 2,060 condominium units, a commercial complex, and other amenities. Much of the proposed project was not completed (for various reasons) and lay dormant until 2005 when Kuilima submitted a subdivision application to DPP.

In 2006, the DPP granted tentative subdivision approval so that Kuilima could proceed with components of the project studied in the 1985 EIS. Upon subdivision approval, the plaintiffs sought declaratory and injunctive relief to stop the project in the trial court. The trial court and Intermediate Court of Appeals ("ICA") decided in favor of Kuilima and concluded that HEPA regulations should be interpreted such that "an agency can require an SEIS only when there is a substantive change in the project itself." (Emphasis added.) Thus, an SEIS was not required as part of tentative subdivision approval, because the plaintiffs had not shown a substantive change in the project.

On writ of certiorari, the Hawaii Supreme Court disagreed with the ICA and reversed the trial court's order. In pertinent part, the Court concluded that:

Inasmuch as: (1) over twenty years have passed since

the approval of the 1985 EIS; (2) the evidence demonstrates that

environmental impacts were examined only through 2000; and

(3) the project is not yet completed, we conclude that the

project, although unchanged in terms of size, scope, location,

intensity, and use, is -- due to the change in timing -- an

“essentially different action,” HAR § 11-200-26, thereby

rendering “the original statement . . . no longer . valid.”

Id. Consequently, contrary to the ICA-majority’s opinion, a SEIS

may be required and, thus, next examine whether a change in

timing “may have a significant effect.” See HAR § 11-200-26.

(Emphasis in original.)

Based on plaintiffs’ letters to DPP which raised issues related to changes in traffic, population density, and the habitats of endangered species and further evidence of these issues provided by plaintiffs in the trial court, the Court held as follows:

. . . we believe the plaintiffs have clearly presented “new” evidence that was not considered at the time the 1985 ElS was prepared and could likely have a significant impact on the environment. Consequently, we hold that the project constitutes an “essentially different action . . . under consideration” and, based on the plain language of HAR § 11-200-26, “a supplemental statement [should have been] prepared and reviewed.”

(Citations omitted.)

Based on the Court's decision, agencies granting approvals based on a previously prepared EIS must "take a 'hard look' at the allegations and evidence presented to it[.]" In taking a hard look the agency must follow the "rule of reason," which the Court articulates as follows:

In making such a determination the court is guided by the “rule of reason,” under which an EIS need not be exhaustive to the point of discussing all possible details bearing on the proposed action but will be upheld as adequate if it has been compiled in good faith and sets forth sufficient information to enable the decision-maker to consider fully the environmental factors involved and to make a reasoned decision after balancing the risks of harm to the environment against the benefits to be derived from the proposed action, as well as to make a reasoned choice between alternatives.

This is the same standard that applies to EIS acceptability determinations in Hawaii and was first cited by Life of the Land v. Ariyoshi, 59 Haw. 156 (1978).

For more on HEPA issues, see the Environmental Law archive.