Perspectives on SB2818: Reforming Hawaii’s Environmental Review System Panel Presentation: Professor Denise Antolini, UH Law School Lee Sichter, Belt Collins Hawaii Ltd. Dave Arakawa, LURF Rob Harris, Sierra Club
April 13, 2010 Natural Resources Section, Hawaii State Bar Ass’n
Study Process (Antolini) Legisla6ve Session (Sichter) Working Group Recommenda6ons: Ch. 341 (Arakawa) Ch. 343 (Harris) Next Steps
Earlier Studies of State Env. Review System 1970/1974: Ch. 341 & 343 Enacted - Mirrored NEPA (1970) 1978: E. Center’s 1st Study (Cox, Rappa & Miller) 1991: E. Center’s 2d Study (Rappa, Miller & Cook)
Myth:
The
Current Study Was a Reaction to Recent Controversial Lawsuits or Superferry Fact: The
Origins of the Study date to Spring 2005
Unrelated Originally Goal:
to Lawsuits or Superferry
Linked to Env. Justice (EJ) Concerns
To Continue Periodic Comprehensive Review
Ensure
System Keeps Up with the Times
Improve
Function of OEQC & Council
Origins of Current Study: 2005
2005: Env. Council focused on EJ & with John Harrison (E. Center) began discussing need for comprehensive review
2005 Session: SB1298 (Sen. Hanabusa re EJ; died in EEP)
2005 Session: SCR140 HD1 (passed):
• requested Env. Council, OEQC, and E. Center to develop EJ guidelines
for Ch. 343 + • set stage for study: “the Legislature finds that the need for continued evaluation and improvement of the State's environmental impact statement process may justify the commitment of state funds for a renewed study of the environmental impact statement process through a legislative appropriation in the Regular Session of 2006.”
Summer-Fall 2005: Env. Council began working on EJ guidelines (unfunded)
Origins of Current Study: 2006-2007
2006 Session: SB2145 (Hanabusa)->SD2 HD2 CD1 (passed as Act 294) • $82k for EJ study by Council /consultant • $108k for E.Center study (via DOH): “to conduct a comprehensive
review of the State's existing environmental impact statement process under chapter 343, Hawaii Revised Statutes”
Fall 2006-Summer 2007: E.Center (Harrison, Rappa et al.) assembled team; conducted stakeholder interviews; DOH held study funds until April 2007; DOH then failed to encumber funds for FY; funds lapsed; DOH terminated funding July 2; E.Center halted study. Fall 2007: E.Center & revamped team decided to approach 2008 Legislature about re-funding and expanding the study
Origins of Current Study: 2008
Pre-2008 Session: UH Team redrafted study bill 2008 Session: Env. Council sent EJ Report to Leg. (Leslie Kahihikolo)
Jan. 2008: UH Team asked Dr. Karl Kim (DURP) to take over lead from John Harrison (retired from UH)
Jan. 2008: Leg. introduced bills to re-start the study: SB2848 (Menor)-HB2510(Morita)
Feb. 2008: Leadership put study in Leg’s fast-track budget bill-> HB2688 • Expanded to 2-year study, expanded scope, tripled the
budget, assigned to LRB instead of DOH
• Gov. signed Feb. 13, 2010, Act 1, §10
Act 1, § 10:
“SECTION 10. Notwithstanding chapter 103D, Hawaii Revised Statutes, the legislative reference bureau shall contract with the University of Hawaii to conduct a study of the State's environmental review process. The study shall: (1) Examine the effectiveness of the current environmental review system created by chapters 341, 343, and 344, Hawaii Revised Statutes; (2) Assess the unique environmental, economic, social, and cultural issues in Hawaii that should be incorporated into an environmental review system; (3) Address larger concerns and interests related to sustainable development, global environmental change, and disaster-risk reduction; and (4) Develop a strategy, including legislative recommendations, for modernizing Hawaii's environmental review system so that it meets international and national best-practices standards. In addition, the study shall be conducted in accordance with the provisions of any other act that addresses the comprehensive study of the environmental review process described in this section. The study shall be submitted to the legislature no later than twenty days prior to the convening of the regular session of 2010 or by an earlier date expressly set by any other relevant Act. There is appropriated out of the general revenues of the State of Hawaii the sum of $300,000, or so much thereof as may be necessary to the legislative reference bureau during fiscal year 2008-2009 to contract with the University of Hawaii to conduct the study required by this section. The sum appropriated shall be expended by the legislative reference bureau for the purposes of this section.”
2008-2010 UH Study Team
Team: Karl Kim (Lead PI; DURP), Peter Rappa (Co-PI; E.Center), Denise Antolini (Co-PI; Law School) Consultants: Gary Gill (former OEQC Director & Dep. Dir. DOH); John Harrison (former E.Center Coord.), Dr. Makena Coffman (DURP) Grad Students: DURP’s Scott Glenn, Nicole Lowen; E.Center Klou Hubbard; LS’s Lauren Wilcoxon, Everett Ohta, Greg Shimokawa, Anna Fernandez, Cari Hawthorne LRB: Ken Takayama (Dir.), Charlotte Carter-Yamauchi, Matthew Coke
Protect
the environment
Improve
information quality and decision
Enhance
public participation
making
Integrate Increase
with planning
efficiency, clarity, and predictability of the process
Stakeholder Interviews/Workshops Literature Review Legal Analysis International Survey of Best Practices Comparative Review of Other States
Fall 2008-‐Jan. 1, 2010: Stakeholder Process-‐>Report to Leg • Fall 2008-‐Spring 2009: Outreach to over 200 stakeholders + open invites • Interviews – 107 session with 170 people: 17 Ques6ons • each interview 1-‐3 hours long • federal, state, county, private industry, landowners, preparers/consultants, non-‐ profits, legislators, a[orneys, UH faculty • Kauai, Hawaii, Maui, Oahu • some en66es declined to be interviewed despite repeated requests • Transcribed, summarized, analyzed interviews • May-‐June 2009: Prepared results for Town-‐Gown Stakeholder Workshop: 5 Areas of Concern; all-‐day workshop held June 3, 2009 at UH LS, over 100 par6cipants • Post-‐Workshop analysis of data; small group stakeholder mee6ng • Oct. 2009: Circulated drae ideas re recommenda6ons to stakeholders & blog • Nov-‐Dec 2009: Draeed report and proposed bills for LRB review • Jan. 2, 2010: Final report to the Leg: Problems and Fixes in 5 Areas
Team spent > 3000 hours just for these phases
17 Questions
Applicability/Triggers 2. Exemptions 3. Public Notice 4. EA/Determinations 5. EIS Preparation 6. Review 7. Acceptability 8. Mitigation 9. Shelf Life 10. Administration 11. Cumulative Impacts 12. Cultural Impacts 13. Best Practices 14. Climate Change 15. Disaster Management 16. Business Concerns 17. Other Issues 1.
5 Areas of Problems Concern Fixes 1. Applicability 1. Statutory 2. Governance 2. Rules 3. Participation 3. Guidance 4. Content 4. Other 5. Process 5. No Action
UH Study->Prop’d Legislation & Supp. Report • •
UH (Final) Report to Legislature (Jan. 1, 2010)
Even though Leg required only “recommendations,” the Study included: • 50-page draft bill (assisted by LRB) (App. 3) proposing omnibus
amendments to Ch. 341 and Ch. 343 • full statutory version of amendments with notes (App. 4)
• Even though Leg did not require anything more than
the Jan. 2010 report, Study team expanded scope to: • track and assist with 2010 session legislation • prepare a “wrap up” post-session report to LRB • (in progress now, due June 2010)
UH Study->Prop’d Legislation & Supp. Report
To help public discussion, Study Team:
Created study blog http://hawaiieisstudy.blogspot.com Drafted two alternative draft bills (posted on blog): - Alt 341: Expand OEQC, Reduce Council Role - Alt 343: Modify Current Trigger System
2010 Session: 4 similar bills introduced (Sen. Hanabusa, Sen. Gabbard, Rep. Say, Rep. Morita) Jan. 15, 2010: Study Team presented recommendations at Joint EEP-ENE Briefing
2010 Session Only SB2818 (Gabbard) advanced . . . Feb. 2: Joint Hearing by Energy and Environment (ENE) & Water, Land, Agriculture and Hawaiian Affairs (WTL) - Strong and diverse opposition Feb. 9: Instead of killing the bill, ENE (Sen. Gabbard, Chair) announced Working Group: Committee Report: “the working group may not achieve consensus on each aspect of the environmental review process, but [we] hope that each member of the group will work in a spirit of compromise to seek a middle ground.”
SD1 passed by ENE & WTL
SB2818 Working Group 12 members: UH Study Team (Kim, Rappa, Antolini) Director of OEQC (Kealoha) Chair of Environmental Council (Grabowsky) Member of Environmental Council (planner) (Atkin) Building Industry Association (Uchida) Land Use Research Foundation (LURF) (Arakawa) Sierra Club (Harris) Earthjustice (Henkin) Belt Collins (Sichter) The Nature Conservancy (Fox) Facilitator: Lily Bloom Domingo & Patti Jenks - CommUnity Works UH Study Team support: Scott Glenn & Nicole Lowen Hosts: Senator Gabbard & Carlton Saito LRB Staff support: Matthew Coke
SB2818 WG Process: Feb. 16-Mar. 22: 9 Half-Day Meetings @ Capitol Step 1: Facilitator & Participants’ Agreement (on blog): “Play Nice” Step 2: Issue Identification & Quick Areas of Agreement Step 3: Work Through Major Areas of Disagreement Step 4: Sub-Group Meetings & Nitty Gritty Drafting Members asked to not just criticize but to offer consensus language Very productive diverse subgroup meetings Mar. 1, 2010 Focus Group Meeting @ Capitol with State & County Agencies (17 people) re discretionary approval proposal Step 5: Final Agreements – Or Not . . . & LRB Final Drafting Step 6: Goal: ASAP Stream Recommendations to Committee(s) in process of reviewing SB2818
Further Senate Action on SB2818 Feb. 22: Ways and Means Committee (WAM) passed with minor revisions (SD2) Mar. 2: SB2818 SD2 Passed by Senate
House Action on SB2818 SB2818 SD2 “quadruple referred”: Energy & Environmental Protection (EEP) Water, Land & Ocean Resources (WLO) Economic Revital., Bus. and Military Affairs (EBM) & Judiciary (JUD) Mar 9: Triple Joint Hearing by EEP/WLO/EBM Mar 11: Passed EEP/WLO/EBM with amend. (HD1) - Stripped bill down to 341 amend. only
Mar 16: JUD hearing Mar 19: JUD passed with amend. (HD2)
House Action on SB2818 Mar 25: FIN Hearing FIN had only HD2 to consider officially WG Proposal re Ch. 341 revisions submitted via Antolini testimony at FIN’s request You Should Read Testimony & Late Testimony (www.capitol.hawaii.gov) At the FIN hearing: WG Support + Fractures
Mar 25: FIN deferred and thereby killed the bill Simult. effort to put WG’s proposed Ch. 343 revisions into gutted SB2957 (green exemptions) via JUD failed
Advertiser
April 1: “Hawaii environmental law being reshaped in private talks - Private groups, others are shaping environmental laws, behind closed doors” April
4 Opinion: Sen. Gabbard: “Measure twice, cut once for EIS” Explains value of WG and outlines recommendations
SB2818 WG Insights: Myth: WG Was “Secret” – In fact, not confidential but work in progress became difficult to share; very fastmoving pieces with incremental, complex, conceptual, and conditional agreements; candid and collegial discussion needed “safe space” Truth: Very Tricky Timing – WG pushed hard to produce changes that would be vetted to public via Leg hearings; no one liked the rush or inability to share drafts; everyone worked very hard; WG did not have agreement until March 22; did not have the revised bill from LRB until March 24; FIN hearing was March 25; the jam caused some mis-communication and problems among WG & outside observers
SB2818 WG Insights: Truth: WG Had Remarkably Good but Not Complete Agreement – WG ended up agreeing on almost Ch. 341 changes (OEQC & Env. Concil); WG agreed on many issues re Ch. 343 but disagreed on some important issues Myth: The Proposed Legislation Is Dead – Many members of the WG are committed to continuing to work on proposals to reform Ch. 341 and Ch. 343; reintroduction of WG’s proposed amendments in 2011 session is likely; good omnibus reform takes time and can be a painful process
WG’s Proposal Re Ch. 341:
341-1: Strengthen and clarify the role of OEQC 341-3(a): Strengthen the authority of OEQC Director and move OEQC from DOH to independent office attached to Governor 341-3(a): Modernize the functions of OEQC • Regular outreach and training for agencies and public • Assist and advise industry, agencies, NGOs, public; provide advisory • • • •
opinions Conduct annual statewide workshops; update Guidebook annually Update HAR at least every three years Develop guidance to encourage innovative best practices and certainty Create and maintain effective IT system, website, searchable digital archives, allow “one stop” tracking of project review process, related permits, subsequent mitigation
WG’s Proposal Re Ch. 341: • Shift rulemaking authority from Council to OEQC; but require
coordination with Council • Prepare new annual report on effectiveness of state environmental review (ER) system
341-3(c): Streamline the Env. Council; ensure close coordination with OEQC through consultation • Reduce Env. Council from 15 to 9 members • At least one from each of the four counties • 5 at-large members • 3 from Senate list; 3 from House list • Gov. still appoints all; Senate confirmation required
WG’s Proposal Re Ch. 341: • Maintain OEQC Director ex officio on Council, but
not Chair • Advise Governor on policy, liaison with public,
formally attach to OEQC • Continue diverse representation of members • Continue current Council members to 2012 or until
new 9-member Council appointed
WG’s Proposal Re Ch. 341:
Provide critical support for modernizing OEQC through a special fund and temporary fees 341-B: Creation of the Environmental Review Special Fund (b) The special fund shall not supplant the OEQC budget and shall be used to: • (1) fund the activities of OEQC and the EC, including
administrative and office expenses and servicing of agency documents related to capital improvement projects; • (2) support outreach, training, education, and research programs; and • (3) modernize technology, maintain technology systems, and develop training programs.
WG’s Proposal Re Ch. 341:
341-C. Gives OEQC authority to adopt fees, in consultation with Council 341-D. Creates Temporary Environmental Review Modernization Moneys • (a)-(b) Provides that, for a five-year period beginning July 1, 2011, 0.1
per cent of all state appropriations for CIP supported by general obligation bonds be used to support the environmental review special fund.
• (d) The total amount of transfers over the five-year-period may not to
exceed $1,250,000 (so, on average, $250,000 per year from the CIP fee is anticipated); fund ends when ceiling reached.
WG’s Proposal Re Ch. 341:
(c) Creates, through rulemaking, a temporary environmental review modernization fee to be collected from county agencies and private applicants based on publication in the OEQC bulletin of certain environmental review documents, with fees capped at: • (1) $1500 for a draft environmental assessment (EA); • (2) $1000 for a final EA; • (3) $500 for an environmental impact statement (EIS) preparation • • • •
notice (EISPN); (4) $4000 for a draft EIS; (5) $3000 for a final EIS; (6) $500 for any supplemental EA; and (7) $1000 for any supplemental EIS.
Recommended effective date for Ch. 341 changes: July 1, 2010
WG’s Proposal Re Ch. 343:
343-A1 Significance Criteria: • Move existing sig. crit. from HAR 11-200-12(b)(1)-(12) into statute
Modifies (b)(13) to add “or emits substantial quantities of greenhouse gases” to current criteria of “requires substantial energy consumption” Adds new (b)(14), re climate hazards: • “Increases the scope or intensity of hazards to the public, such
as increased coastal inundation, flooding, or erosion that may occur as a result of climate change anticipated during the lifetime of the project.”
WG’s Proposal Re Ch. 343:
• •
•
343-B Add new (NEPA-like) Record of Decision (ROD) requirement that requires the accepting authority or agency to prepare a public ROD within 90 days following the acceptance of the final EIS* (1) states the agency’s decision, (2) identifies alternatives considered, including those that were environmentally preferable, and preferences among the alternatives, including economic and technical considerations and agency statutory mission, and (3) states whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted and, if not, why they were not adopted.
Adds judicial review for failure to prepare the ROD*
Requires new rules for ROD requirement*
WG’s Proposal Re Ch. 343: 343-2 Definitions – Amend 6 defs. for technical reasons or consistency 343-2 Definitions – Move 3 defs. from HAR to statute for clarity
• Cumulative effect* • Primary effect • Secondary effect*
343-2 Definitions – Add 4 defs. to reflect system modernization • • • •
“Environmental review” (system) “Programmatic EA or EIS” (similar to NEPA)* “Supplemental document” “Tiering” (similar to NEPA)*
343-2 Definitions – Delete 3 defs due to replacement of trigger approach
WG’s Proposal Re Ch. 343:
343-3 Public participation, records, and notice • Move OEQC to paperless • Hard copies in office but sent only if requested due to lack of e-access* • Endorse (existing) electronic Notice • Encourage early notice by agencies and applicants to public, and facilitate public involvement
WG’s Proposal Re Ch. 343:
343-5 Agency and applicant requirements: Streamline and modernize the “application screen” by replacing the existing “thirteen triggers” system* with a “discretionary approval screen” system and “3 classes” approach, retaining the “use of state or county lands or funds” trigger and excluding ministerial approvals 343-5(a): (a) Except as otherwise provided, an EA shall be required for actions that propose: (1) the use of state or county lands or funds by an agency; or (2) the issuance of a discretionary approval to an agency or a person for an action that may have adverse environmental effects, including but not limited to discretionary approvals for the use of state or county lands or funds.*
WG’s Proposal Re Ch. 343:
343-5(b): To encourage greater certainty and transparency in the environmental review process, in consultation with relevant state and county agencies and the public, the office shall develop guidance to classify discretionary approvals that are subject to an EA pursuant to subsection (a)(2) and ministerial approvals as follows: (1) Class 1: Discretionary approvals for which the action may have adverse environmental effects and therefore requires an EA or EIS, unless exempt pursuant to section 343-6(a)(2); (2) Class 2: Discretionary approvals for which the action has no likely adverse environmental effects; and (3) Class 3: Ministerial approvals.*
WG’s Proposal Re Ch. 343:
343-5(c) (agency actions):
Add some clarifying language and cross-references
Allow an agency, “based upon its discretion, [to] choose to prepare a programmatic environmental assessment” Allow an agency “if the agency determines, through its judgment and experience, that an EIS is likely to be required, [to] choose not to prepare an EA and instead [] prepare an EIS, following adequate notice to the public and all interested parties” (“going straight to the EIS”)
WG’s Proposal Re Ch. 343:
343-5(d) (applicant actions):
Add some clarifying language and cross-references
Allow an applicant , “based upon its discretion, [to] choose to prepare a programmatic environmental assessment” Allow an applicant “if the agency determines, through its judgment and experience, that an EIS is likely to be required, [to] choose not to prepare an EA and instead shall require (the applicant) to prepare an EIS, following adequate notice to the public and all interested parties” (“going straight to the EIS”)
WG’s Proposal Re Ch. 343:
New 343-5(h), to allow agencies, for good cause, to extend the public comment period on Draft EAs and Draft EISs: “Upon receipt of a written request and for good cause shown, an approving agency or accepting authority shall extend the public review and comment period required under this section as follows: (1) For environmental assessment: No more than thirty additional days beyond the public review and comment period required in section (c)(1)(A) or (d)(1); and (2) For environmental impact statements: No more than fortyfive additional days beyond the public review and comment period required in subsection (c) or (d) relating to draft statements.”*
WG’s Proposal Re Ch. 343:
343-7 Limitation on actions -
343-7(b): extend judicial challenge period from
• 60 to 120 days to challenge the determination to prepare an EIS, and • 30 to 120 days to challenge the determination not to prepare an EIS
343-7(c): extend judicial challenge period from • 60 to 120 days to challenge the acceptance of an EIS
343-7(c): delete the following limitation on actions “Affected agencies and persons who provided written comment to such statement during the designated review period shall be adjudged aggrieved parties for the purpose of bringing judicial action under this subsection; provided that the contestable issues shall be limited to issues identified and discussed in the written comment,” and substitute the same phrase found in (a) and (b): “Others, by court action, maybe adjudged aggrieved.”*
WG’s Proposal Re Ch. 343:
343-6: Rulemaking 343-6(a): shifts the rulemaking authority from the EC to OEQC but retains the requirement for OEQC to “consult with” the EC in rulemaking. 343-6(a)(2), regarding exemption declarations, requires rules to establish procedures that “ensure that the declaration is simultaneously transmitted electronically to the office and is readily available as a public record in a searchable electronic database”
WG’s Proposal Re Ch. 343:
343-6(a)(2), regarding exemption lists, requires the office, “in consultation with the affected agencies, [to] review and, if necessary, update lists or categories of exempt actions declared pursuant to this paragraph not less than every three years. 343-6(a)(4), requires new rules to prescribe “best practices, including document length” for EAs 343-6(a)(6), requires new rules to prescribe “best practices, including document length” for EISs
WG’s Proposal Re Ch. 343: 343-6(a)(10), requires new rules, similar to the NEPA regulations, 40 C.F.R. 1503.4 and EQ guidance (Question 29a), to address repetitious or voluminous public comment, that “prescribe procedures for the public comment and response process, including but not limited to the allowed use of electronic technology and the issuance of one comprehensive response to multiple or repetitious comments that are substantially similar in content”
WG’s Proposal Re Ch. 343:
343-6(a)(12), requires guidance related to the significance criteria 343-6(a)(13), requires procedures and guidance related to programmatic documents and tiering*
WG’s Proposal Re Ch. 343:
• •
•
Supplemental documents: adds new definition to 343-2 and requires new rules via 343-6(a)(14), based on a hybrid of NEPA and existing HAR, to require procedures “for the applicability, preparation, acceptance, and publication of supplemental EAs and supplemental EISs when there are: (1) Substantial changes in the proposed action, (2) Significant new circumstances or information relevant to environmental effects bearing on the proposed action or its impacts; or (3) Substantial delay in the implementation of the proposed action beyond what was disclosed in the original environmental assessment or statement.”*
WG’s Proposal Re Ch. 343:
343-5(c), re condition precedent for agency actions, and (d) for applicant actions, add: “provided that in circumstances when a supplemental document is required, its acceptance shall be a condition precedent only to implementation of those elements of the proposed action for which one or more discretionary approvals, modifications, or revocations remain, or to the extent that an agency has retained discretion to modify or revoke any prior approval.” 343-7(a): clarify that the lack of a supplemental EA or supplemental EIS may be the basis for a judicial proceeding within 120 days of the agency’s decision to carry out the action or after the proposed action is started.*
WG’s Proposal Re Ch. 343:
Section 9 of the bill clarifies the prospective application of the proposed amendments Section 12 of the bill sets an effective date of July 1, 2012.
How To Follow the Process: Capitol.hawaii.gov UH Study blog: http:// hawaiieisstudy.blogspot.com/ Post-Session UH Report due Summer 2010 Mahalo!