State to Exempt "Alien or Pest Species Control" from Environmental Review

The Hawaii Department of Land and Natural Resources ("DLNR") is proposing an "alien or pest species control" exemption to the Hawaii Environmental Policy Act ("HEPA"). If adopted by the environmental council, it may allow the state to move forward with some controversial programs without the benefit of environmental review or public disclosure.

DLNR's Proposed Amended Exemption List, dated May 26, 2010, is posted at the Office of Environmental Quality Control's ("OEQC") Web site. On page 5 of DLNR's proposed list, under the heading, Exemption Class #1: Operations, repairs or maintenance of existing structures, facilities, equipment or topographical features, involving negligible or no expansion or change of use beyond that previously existing, is the following proposed exemption:

29. Actions that are intended to maintain or improve the sustainability of those natural resources under the jurisdiction of the Department, including law enforcement, regulation compliance, resource and environmental monitoring, alien or pest species control, and other administrative and management measures.

The "alien or pest species control" exemption comes at an interesting time considering the following: Hawaii Department of Land and Natural Resources Proposes the Release of Alien Insect from Brazil into Hawaii's Environment to Control Strawberry Guava. However, the proposed exemption list is not a free pass for DLNR.

First, DLNR's exemption list must be adopted by the environmental council. The environmental council has HEPA rulemaking authority under HRS § 343-6. This includes the authority to "establish procedures whereby specific types of actions, because they will probably have minimal or no significant effects on the environment, are declared exempt from the preparation of an environmental assessment[.]" Pursuant to HEPA's administrative rules, HAR § 11-200-8, these lists and any amendments to the lists must be submitted to the environmental council for review and concurrence. The environmental council is subject to Hawaii's sunshine law; therefore, the public will have an opportunity to comment before the environmental council takes action at one of its public meetings.

Second, even if the new exemption list is adopted, this would not give DLNR carte blanche to exempt all of its alien or pest species control programs. As the Hawaii Supreme Court said in the famed Superferry Case (Sierra Club v. Dep't of Transp., 167 P.3d 292 (Haw. 2007)), "blind deference to agency exemption determinations is not appropriate." As the Court explained, an agency making an exemption determination must comply with the procedural consultation requirements of HEPA and make four determinations: (1) defining the action, (2) whether it fits into an exempt class, (3) whether an exclusion to the exemption applies, and (4) whether the exemption is consistent with the letter and intent of HEPA because it will “probably have minimal or no significant effects on the environment."

One of the lessons of the Superferry Case is that even though an agency (in that case, the state Department of Transportation) relies on an exemption list adopted by the environmental council, the agency must be sure that a particular project fits the exemption. In the Superferry Case, the Court concluded,

Contrary to the expressly stated purpose and intent of HEPA, the public was prevented from participating in an environmental review process for the Superferry project by DOT's grant of an exemption to the requirements of HRS chapter 343. The exemption was erroneously granted as DOT considered only the physical improvements to Kahului harbor in isolation and did not consider the secondary impacts on the environment that may result from the use of the Hawaii Superferry in conjunction with the harbor improvements. “All parties involved and society as a whole” would have benefitted had the public been allowed to participate in the review process of the Superferry project, as was envisioned by the legislature when it enacted the Hawai‘i Environmental Policy Act.

Although DLNR's proposed rules have been posted on OEQC's Web site, it is unclear where the environmental council is in its review process. According to the OEQC's guidance, Guidelines for Preparing Exemptions, the proposed list must be noticed in the Environmental Notice which triggers a 30-day public comment period.

UPDATE 8/02/10: Notice for the Proposed Exemption Lists for Aquatic Resources, State Parks, Forestry and Wildlife, Boating and Ocean Recreation, and Department-Wide were posted in the July 8, 2010 edition of the Environmental Notice. According to the notice, comments are due "within 30 days of the date of this Notice to the Department of Land and Natural Resources, Engineering Division, Project Planning and Management Branch, ph: 587-0229, fax: 587-0283, email: carty.s.chang@hawaii.gov, and the Office of Environmental Quality Control, 235 South Beretania Street, Honolulu, HI 96813, fax: 586-4185."