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Sunday, April 15, 2012
SB3010: Sierra Club Threatens to Sue over Environmental Exemptions
By News Release @ 3:18 PM :: 3981 Views :: Energy, Environment

From Sierra Club Hawaii, April 13, 2012

We recently circulated a memo (pasted below) to all members of the House of Representatives. It objected to some of the "worst" bills of the session -- attempts to exempt certain state or county agencies from environmental checks and balances that have been in place for decades. Or the bills attempt to fast track development by reducing community input. Or bills that reduce funding for clean energy programs, like the solar tax credit.

Unfortunately -- thanks to floor speeches by Representatives Kawakami and Har and arm twisting by house leadership -- all of these bills passed out.

* * * * *

Aloha legislators:

Soon you will vote on measures that exempt -- not streamline -- certain state projects from laws that are intended to protect community participation and Hawaii’s fragile environment. What follows are brief explanations of our opposition to these measures. Thank you for your consideration of our position on these bills. Please don't hesitate to contact me at any time to discuss these measures.

Environmental Measures

Exempting State Projects from Environmental Laws (SB 755). This measure reduces or eliminates environmental laws for state projects. Consider:

(1) What is the need? Simple repair and maintenance is already exempted from most environmental regulations. For example, a process exists and is frequently used to exempt projects that have little or no impact on the environment from chapter 343. Most stakeholders -- including the Land Use Research Foundation in their 2010 testimony -- have testified that this process works. With regard to commercial harbors, in the past several decades DLNR required only one commercial harbor (Hilo) to apply for a conservation district use permit, in large part because the Department of Transportation proposed an expansion. With respect to SMA permits and airports, DOT currently has four SMA permit approvals to start work on the Kahalui Airport - but work hasn’t started.

(2) What would be the impacts of SB 755? Without getting lost in the specifics, let’s focus on what aspects would be reduced (particularly on projects without federal funding and the concurrent protection of federal regulations):

  • A loss of public involvement -- particularly on neighbor islands -- in the coastal zone management process. Public hearings would be eliminated for most state projects. Decision-making would be taken out of the hands of the communities most impacted. Coastal areas, where commercial, recreational, residential, and environmental interests frequently interact, need careful planning. Under this measure, the public and the counties would not be allowed to suggest ways to improve projects to save money, protect natural resources, or satisfy community concerns.
  • The discretionary hearing process that triggers chapter 343 would be eliminated. Without a discretionary hearing under the coastal zone management act -- as the Department of Transportation argued in its attempts to expand the Kahului Airport -- chapter 343 environmental review may not be required. If no chapter 343 review occurs, then there would be no consideration of Hawaii’s unique cultural beliefs, practices and resources of native Hawaiians, and other ethnic groups.
  • Protections for recreational uses within state harbors. Some commercial harbors, such as Kaunakakai or Hana Harbor, have a mix of recreational and commercial use. Without the need for a conservation district use permit, consideration of recreational uses would not adequately be considered if there are proposals to expand harbor use to include more industrial or commercial purposes.
  • Loss of public involvement -- particularly on neighbor islands -- in commercial harbors. No obligation to hold a public hearing would remain on proposals to say, dredge a harbor, eliminate recreational use, allow large cruise liners to dock, etc.
  • Less expert involvement in what projects should be exempt from environmental review. In deciding what projects should be exempt from environmental review, gubernatorial judgment on environmental concerns would replace the expertise currently sitting on the environmental council.

This bill is not about streamlining the process, but rather it exempts the state from having to comply with Hawaii's laws. Years ago, this legislature concluded that “the quality of the environment is as important to the welfare of the people of Hawaii as is the economy of the State.” What’s changed?

Reducing the Solar Tax Credit (SB 2288)

Our current solar industry has been one of the bright spots in our economy -- producing approximately 15% of all construction jobs last year. The current system of extending a credit “per system” is based upon the Department of Taxation’s express interpretation of the governing statute. A drastic change to this interpretation, as proposed in this measure, would sharply curtail the solar industry and curb thousands of jobs across the state. A more preferable option would be to follow the Senate’s example and minimize the tax credit in an orderly fashion over time. While we’re trying to revive our economy and move to a clean energy future, this measure is terribly misguided.

Vacation Rentals on Agricultural Land (SB 2341)

This measure would authorize vacation rentals on agriculture land on Maui and potentially other neighbor islands. This would raise the price of agricultural land and the cost of other agricultural activities. It would also transform agricultural communities into tourist destinations without the benefit of orderly planning.

While attempts to define bona fide farming have improved this bill, the definition is still fairly ambiguous, unclear as to how it applies over time, and lacks an adequate enforcement mechanism. To the extent the state or county attempts to amend this provision over time (and limit vacation rentals on agricultural land), it will potentially expose the state/county to a judicial takings claim. More time should be taken with this proposal in order to ensure this doesn’t radically transform farming in the state. At the very least, this measure should include a specific sunset provision.

Automatically Approving and Exempting TOD from Zoning and Other Smart Growth Protections (SB 2927)

While we support the intent of sparking urban growth, this bill prioritizes the elimination of the public voice as a means to expedite growth. This bill requires action by the planning agency and legislative body to disapprove a developer’s application within forty-five days. Big developments sometimes require additional discussion. This short of a time frame -- even assuming legislative bodies meet frequently enough to meet this schedule -- only harms the public and creates bad projects that fail to adequately analyze traffic impacts, infrastructure needs, or community input.

Moreover, exempting projects from all zoning requirements is contrary to concepts of smart urban planning. It builds distrust and discourages investment in new buildings (no assurances view planes will be protected, seedy establishments will be kept out, etc.).

Environmental Regulations Regarding Several State Bridges (SB 3010)

Although we plainly understand the need to rehabilitate or replace deficient bridges, exempting certain bridges from all state environmental regulations, such as laws to protect citizens from improperly dumped wastewater and air pollution, is simply bad policy.

And this legislation, while intended to expedite the construction of these bridges, is likely to result in significant delays. This bill blatantly violates several constitutional protections, such as protection of Hawaii’s streams and consideration of cultural impacts (see testimony of DLNR and OHA). If passed, litigation may be inevitable. Holding up construction on all of the named bridges because of litigation would be counterproductive and a waste of taxpayer funding.

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