Overhaul of EIS rules is here

Today marks the start of the public hearings on a proposed overhaul of the regulations implementing the law that requires environmental impact statements in Hawaiʻi, Haw. Rev. Stat. Chap. 343. Everything you need to participate in this rulemaking process can be found at this web address: http://health.hawaii.gov/oeqc/rules-update/This includes the current regulations, the proposed new regulations, a rationale document, logistics for meetings on all islands, and an online comment form. The deadline to comment is June 5, 2018.The Office of Environmental Quality and Control, together with its appointed advisory board the Environmental Council, have been working since last fall on the new proposed regulations. The Environmental Council held several public, open discussion meetings to hash out changes to the regulations.  Business interests, community groups, and environmental organizations like the Sierra Club, have engaged with decision-makers at every stage of this process.  Not all of our suggestions were incorporated into the current version of the proposed regulations, but many of them were. For the most part, the Sierra Club finds the proposed amendments to be an improvement on the old rules. The regulations are presented in a logical flow and written in direct, simple language that is easy to understand. The proposed changes are well-documented and explained.  Most importantly, bedrock principles protecting public trust natural and cultural resources from short-sighted destruction remain in the regulations. But we wouldnʻt be the Sierra Club if we did not raise our concerns. If any of these concerns resonate with you, then please by all means raise them. And let us know if you have other concerns that we may have missed. Email us hawaii.chapter[at]sierraclub.org.Sierra Club of Hawaiʻi's concerns on proposed changes to the regulations on environmental impacts statements (EIS):

1. Significance Criteria (HAR 11-200.1-13(b)).  The newly proposed regulations add the words “likely to” ahead of the list of potential conditions that would require an environmental impact statement. The standard actually should be “raise substantial questions regarding.” This change might seem minor at first, but think about it: If the trigger to requiring an EIS is something is LIKELY to happen, then it will be much harder to require an EIS. You would have to know a proposed action is likely to be harmful before you could require a review on whether the proposed action is harmful.  This makes no sense. The whole purpose of an environmental evaluation is to determine IF there might be impacts from a proposed action, and if so how severe the impacts might be. That is why, we are strongly urging the Environmental Council to either cross out the words “likely to” thereby leaving that part of the regulation unchanged. Or, replacing the phrase “likely to” with the phrase “raises substantial questions regarding.” The proposed regulations cite the Kepoʻo v. Kane case from 2005 as the basis for the wording “likely to.”  The reasoning in that case was overruled by the Hawaiʻi Supreme Court in its 2010 decision in Unite Here! v. City and County Honolulu regarding a luxury development at Turtle Bay and the need for a supplemental EIS.
2. Affordable Housing Exemption (HAR 11-200.1-15(c)(11)).  We recognize that Hawaiʻi is suffering a housing crisis. More affordable housing must be built to ensure that everyone in Hawaiʻi has a decent place to live. This mandate, however, does not justify total circumvention of the laws designed to ensure a high-quality of living for all of Hawaiʻi’s people. Compliance with Chapter 343 is as much about protecting natural and cultural resources as it is about ensuring livable communities, good urban design, satisfaction of minimum infrastructure needs, and thoughtful traffic management. Affordable housing projects have the potential to significantly affect the quality of life for residents of the proposed project, as well as the surrounding community. The exemption as currently written is ripe for abuse by developers seeking to build less-than-affordable housing without any environmental review. At the very least, this exemption should define affordable housing as 60% AMI or below and expire ten years after adoption.  If the housing crisis still exists in 10 years, then we can consider an extension of the exemption.
3. Pay-to-degrade (aka indirect mitigation measures)The proposed revisions missed the opportunity to address the growing popularity of “pay to degrade” arrangements, where project proponents provide financial support for ancillary, indirect activities to “mitigate” the significant impact anticipated by a project proposal. For example, when a project proponent proposes to destroy a culturally significant viewplane or undermine the dominance of nature in a conservation district by building a massive structure, and then proposes to reduce the significance of these harms by paying to an education fund or furnishing the structure with cultural artifacts.  Arranging a community benefits package to ensure the profits of a proposal are shared more equally is important but it is not the same as mitigating the harm of a proposed activity to a level that is less than significant. These regulations should make clear that only mitigation measures that directly reduce the significant impact anticipated by the project should be considered, e.g. create new habitat to off-set habitat that will be lost due to a project.
4. Exemptions (HAR 11-200.1-15)We understand the motivation to hone in on when an environmental review is needed and when it is not. It is important to save resources by focusing them on the proposed actions that really need our collective attention. We can see the logic behind the restructuring of the exemption process. That said, there is still a major problem for the lack of a definition for the word “minor.” Properly employing key exemptions hinges on whether an agency considers a proposed action to be “minor.”  What qualifies as minor? This is a difficult, but crucial question to answer. In addition, these regulations should make clear that renewed exemptions do not get a free pass simply because they were approved once before. Changes in the condition of the surrounding environment, community sentiment, and the activity itself warrant an agency to make the slightly more thoughtful evaluation about whether an exemption is appropriate, as outlined in HAR 11-200.1-17.
5. Supplemental EIS triggersThe issue of when is an environmental evaluation is too old to be valid has been seriously and repeatedly litigated in Hawaiʻi.  This rewrite of the regulations should not miss the opportunity to provide clarity on this question. Think of how significantly our environment is evolving in the context of climate change. Nothing should be assumed. The regulations should be amended to:

A) Set a shelf-life EAs and EISs. We propose 5 years. B) Make clear that changed conditions to the surrounding environment and community -- not just to nature of the proposed action -- are grounds for requiring a new environmental review. C) Require environmental review on the renovation or reconstruction of previously exempted projects.