Wayne’s Sierra Club World: A CapitolWatch Reflection
By Wayne Tanaka | Reading time: 11 minutes
May 5th marks sine die (see-nay dee-ay) for the legislature’s 2022 Regular Session. Thankfully, and with the efforts of so many Sierra Club members and friends, measures that could have significantly undermined environmental and cultural protections did not pass out of the legislature, and as of this writing, historic bills that may help to protect our water and perpetuate cultural practices are on their way to becoming law! However, there are still a few proposals that warrant concern and possible action. Read on for highlights from this 2022 session.
Upholding the Public Trust in Water
Since time immemorial, water in Hawai‘i has been recognized as so precious, and so essential to life, that it cannot be privately owned, but instead must be carefully protected and managed for the benefit of the ‘āina and the common good. While our constitution, Water Code, and case law continue to uphold this concept of water as a public trust, much work still remains to be done to uphold the government’s trust obligation, and keep our water from being unduly commodified or threatened. Fortunately, bills that would have undermined the public trust in water were successfully defeated this year, and a historic bill to protect our water from inherently dangerous and massive underground storage tanks - including but not limited to the Red Hill Bulk Fuel Storage Facility - is well on its way to becoming law!
SB2600 SD2 HD2 CD1, Relating to Underground Storage Tanks: As drafted, this measure will prohibit the operation of large underground storage tanks mauka of the underground injection control line, as of July 2022. With its passage on final reading, this measure is poised to help to stop the Red Hill Facility and others like it from threatening our water supply and our islands’ source of life.
HB1600 HD1 SD2 CD1, Relating to the State Budget: Experts agree that the restoration and protection of our native watersheds, which play a key role in our water cycle and aquifer recharge, is critical to ensuring sufficient water for our islands in the climate change era. Healthy and intact native watersheds will also reinforce our islands’ climate resiliency in other ways as well, from reducing runoff that can impact our nearshore ecosystems to mitigating flooding events that will become more and more frequent with the destabilization of our climate.
Accordingly, a wide cross section of the community came out to voice their concerns after $4 million for watershed protection funding was removed in the state supplemental budget bill. Fortunately, the conference committee responded to the community’s concerns, and not only restored this budget line item, but doubled it to $8 million in the last budget bill draft. This bill has now been transmitted to the Governor for his consideration.
SB2884 Relating to Water Resource Management for Affordable Housing: This measure would have required the automatic approval of well installation and water use permits associated with “affordable” housing development, irregardless of potential impacts to our streams and aquifers, Native Hawaiian traditional and customary practices, kuleana water rights, the rights of the Department of Hawaiian Home Lands and its beneficiaries, and other public trust purposes and reasonable beneficial uses protected under the public trust doctrine and state water code. Fortunately, this measure was defeated after substantial opposition was raised during its first hearing in the Senate.
HB2164 and SB3132, Relating to Disposition of Water Licenses by the Board of Land and Natural Resources: These companion bills would have allowed the Board of Land and Natural Resources (”BLNR”) to directly issue decades-long water licenses to corporate stream diverters like Alexander & Baldwin (”A&B”). The lack of concrete safeguards and conditions in these measures raised significant concerns given the BLNRʻs historic and ongoing practice of abdicating its public trust responsibilities in favor of corporate entities including A&B - and to the detriment of the environment, Native Hawaiian cultural practitioners and farmers, the Department of Hawaiian Home Lands, and other public trust purposes and reasonable beneficial uses of water. Fortunately, both measures were defeated in the House of Representatives.
Protecting Public Lands
Like water, our constitution considers our public lands and natural resources to be part of the public trust, to be managed and protected for the benefit of present and future generations. Much of our public lands are also subject to the Public Land Trust as well as requirements under the Hawaiian Homes Commission Act, for the benefit of the Native Hawaiian beneficiaries of the Office of Hawaiian Affairs (”OHA”) and the Department of Hawaiian Home Lands (”DHHL”). Fortunately, measures that would have eroded the BLNR’s obligations under these trust frameworks were defeated this year.
HB2165 and SB3133 SD1, Relating to Disposition of Public Lands by Direct Negotiation: Public land leases provide critical funds for the Department of Land and Natural Resources (”DLNR”) to steward our lands and waters, and a percentage of certain lease revenues should also be set aside and transferred to OHA and DHHL for public land trust and former sugarcane lands, respectively. Particularly in light of the DLNR’s historical leasing practices, these companion measures’ proposal to allow direct negotiation for 55+ year leases of industrial, commercial, and resort lands could have led to sweetheart, backroom deals for lessees seeking to control our most lucrative public lands for generations at a time — undermining the protection of our ‘āina and our obligations to the Hawaiian community. Fortunately, both measures were defeated in the House of Representatives.
SB2068 SD1, Relating to Land Management: This measure would have led to the forcible transfer of nearly 100,000 acres of “pasture” lands from the DLNR to the Department of Agriculture, to facilitate ranching and livestock grazing activities. Given the Department of Agriculture’s narrow mission, limited expertise, and lack of oversight capacity, this measure could have impacted public access for hiking, hunting, and cultural practices; watershed protection; and the preservation of native and endangered species habitat. Ranchers would likely pay even less for their use of transferred public lands under the DOA than the already very small fees they pay under DLNR, and ranching-related facilities on these lands could have also received exemptions from state and county environmental protection and development laws. This measure and others like it - including a House bill that was gut and replaced in the Senate - were successfully defeated.
Protecting Culture and the Environment
A number of bills that would have eroded important mechanisms that protect our environmental and cultural integrity were defeated this year, and a measure to promote traditional agricultural practices — which may be key to our islands’ future food security - may be poised to become law.
SB3329 SD1 HD1 CD1, Relating to Public Participation in Government: As Sierra Club members know, defending our environment requires advocacy on all fronts — including in our courts and through community participation in public hearings and consultations. Strategic Litigation Against Public Participation, or “SLAPP” actions, are one tool used by powerful interests to discourage such advocacy, targeting litigants and testifiers with lawsuits sometimes claiming millions of dollars in damages and that may require them to pay tens of thousands of dollars in legal fees and costs. This measure would replace Hawaiʻi’s current anti-SLAPP laws with more robust protections that will better prevent environmental and other public interest activists from being subject to retaliatory litigation by powerful corporations and their attorneys. With both chambers having now approved this measure on final reading, it will now be transmitted to the Governor for his consideration.
HB1768 HD2 SD2 CD1, Relating to the Disposition of Water Rights: Also known as the “Justice for Kalo Farmers Act,” this measure would allow traditional kalo cultivation to be exempted from state water licensing requirements. This would provide major relief to kalo farmers such as those in Waiʻoli, Kauaʻi, who would otherwise need to apply for a water license just to continue to cultivate kalo in the same agricultural footprint as that of mahiʻai in the days before Westerners arrived on our islands’ shores. A final major push by community members and groups helped to save this measure from the brink of defeat, getting it scheduled for a hearing and passed by last Thursday’s decking deadline. Now that it has passed final reading, this bill will also be transmitted to the Governor.
HB1750 Relating to Affordable Housing: This measure would have exempted “affordable” housing projects on public lands or using public funds from our environmental review law. This would take away an essential mechanism for public transparency and input in the development of these lands, leading to significant, irreparable, and avoidable impacts to the public’s environmental, socioeconomic, and cultural interests in our limited public land base. Fortunately, this measure was defeated after substantial opposition was raised during its first hearing.
HB1840 HD2 Relating to District Boundary Amendments: The Land Use Commission (LUC) District Boundary Amendment process, which is generally required for land use district boundary changes (i.e. from agriculture to urban) involving 15 acres or more, provides a critical and comprehensive mechanism to ensure that large scale land use changes do not unduly impact our environment or Native Hawaiian rights, and account for a range of other public interests including with respect to food security, housing, climate change, and even job creation. Notably, the LUC has never failed to render a decision on district boundary amendment applications within the 45 day deadline for affordable housing projects, belying claims that the LUC is the cause of delays in the production of affordable housing. Nonetheless, developers continually push to pass measures, like this one, to reduce or eliminate the Land Use Commission’s role in district boundary amendments. Fortunately, this measure was defeated in the Senate after it failed to receive a hearing.
GM855 and GM856 Nominating Kūʻike Kamakea-ʻŌhelo to the LUC: Water protector and expert in Native Hawaiian land use and agricultural practices, Kūʻike Kamakea-ʻŌhelo, was nominated for, and confirmed by the Senate, to serve on the LUC for the next four years. His expertise and demonstrated, longstanding commitment to the community will be of invaluable service to the LUC as it renders decisions, and places conditions on proposed large-scale land use changes in the coming years. Hoʻomaikaʻi and mahalo nui for your service, Kūʻike!
Remaining Bills of Concern
Unfortunately, this yearʻs legislative session was not a complete success, as there are a few problematic measures that have been passed by the legislature and that will now need to be considered by the Governor. This includes HB2416 HD2 SD1 CD1, which singles out 501(c)(4) organizations that engage in electioneering and candidate endorsements - like the Sierra Club - for record keeping, public disclosure, and administrative requirements, supposedly for the purpose of removing “dark money” in politics. These added burdens would create practical challenges that may hamper the Sierra Clubʻs longstanding and well known public service of reviewing, vetting, and making recommendations on which candidates for office may be best situated to protect our environment. Notably, other entities that make candidate endorsements — such as Political Action Committees or PACs, chambers of commerce, unions, and for-profit organizations — will not be affected by this measure.
In addition, SB2510 SD2 HD1 CD1 was amended by its conference committee to include highly concerning provisions requiring that an arbitrary percentage (33%) of an island’s renewable energy portfolio to be “firm” renewable, and to further require that no more than 45% of an island’s renewable energy come from one source (other than geothermal). Based on the definition of “firm” renewable and the arbitrary percentage requirements of this measure, this bill would tie each island’s hands in their development and use of reliable, climate-friendly, and cheap renewable energy sources, potentially forcing them to rely on environmentally problematic alternatives — like tree burning — that may unnecessarily impact our ecological integrity, the health of surrounding communities, and ratepayer’s bank accounts. While many legislators opposed or expressed reservations about this bill, it did receive enough votes to pass on final reading in both the House and Senate, and will now be transmitted to the Governor.
A Closing Reflection
While we have had a relatively successful session, legislative advocacy on behalf of our environment and community always requires a tremendous investment of time and resources by grassroots groups and individuals willing to engage with legislators and to stand up for environmental concerns. We are always so grateful to see so many Hawai‘i residents willing to do what it takes to protect our ʻāina and the islands we call home, and are also so thankful for the many relationships that have been cultivated through these collective efforts for change.
I would like to extend a special mahalo to those that have also contributed generously to the Sierra Club’s work, which could not be done without such amazing support. If you are interested in making a donation to support our efforts, please be sure to check out our ongoing donation drive (ending on Mother’s Day, this Sunday!), where you could receive your choice of a beautiful one-of-a-kind scarf, table runner, jacket, or quilt, handmade from repurposed vintage kimono, created by Elizabeth Kent (vestedinteresthawaii.com) and Ellen Carson (while supplies last).