Sunday, September 11, 2016

Hawaii Appeals Court Sets Boundary on the Applicability of State EIS Law

The trend in Hawaii's appellate courts has been to expand the scope and applicability of Hawaii's environmental laws.  The courts have rarely deferred to agency expertise and discretion.

In Umberger v. Department of Land and Natural Resources ("DLNR"), the Hawaii Intermediate Court of Appeals defined the outer-limits of Hawaii's environmental impact statement law, commonly referred to as the Hawaii Environmental Policy Act ("HEPA").

Yellow Tangs, A Commonly Harvested Aquarium Fish
The case involved aquarium fish permits that allow permittees to collect fish for aquarium purposes from Hawaii's waters.  The Court defined the question before it as follows:
[W]hether a particular Hawaii statute, HEPA, is intended to apply so that each applicant for an aquarium fish permit must, at a minimum, prepare an EA [environmental assessment]—as well as engage in the related process of consultation, information gathering, and public review and comment—and DLNR must, with each application, undertake a HEPA review prior to issuing an aquarium fish permit.
The Court disagreed, and held as follows:
We conclude that to interpret "program or project" so sweepingly as to require individual aquarium fish permit applicants to undertake the EA process is not a "rational, sensible and practicable interpretation" of HEPA and would create an unreasonable, impractical, and absurd result. Accordingly, we hold that aquarium collection under an aquarium fish permit issued by DLNR pursuant to HRS § 188-31 is not an "applicant action" under HEPA.
Citations omitted.

Although not essential to its decision, the Court provided a rare statement of agency deference when it stated that, "There is no question that the DLNR shares Appellants' concerns about the health of Hawaii's reefs and its marine inhabitants and seeks to appropriately manage and administer the aquatic life and aquatic resources of the State in accordance with all applicable laws."  The U.S. Supreme Court recognized that judicial deference to agency expertise is one of the most important principals in administrative law, due in part to an agency's intense familiarity with the history and purposes of the legislation at issue and their practical knowledge of what will best effectuate those purposes.

Read the entire opinion at https://scholar.google.com/scholar_case?case=9667698222799409226.

Thursday, June 30, 2016

Happy 60th Birthday to the U.S. Interstate Highway System

It’s an auspicious day: The U.S. Interstate Highway System turns 60 years old today. 

As we reflect on the importance of President Eisenhower’s monumental public works program, it is apropos to consider why we are building a monumental transportation project for Hawaii, rail.

Here is a link to a report, “The Interstate Highway System turns 60: Challenges to Its Ability to Continue to Save Lives, Time and Money,” prepared by TRIP, a national transportation research group, http://www.tripnet.org/docs/Interstate_Highway_System_TRIP_Report_June_2016.pdf.  It’s a survey of the opportunities and challenges of the interstate system, and Hawaii ranks high on the challenges side of the balance sheet:
Source: http://www.fhwa.dot.gov/interstate/finalmap.cfm
  • Hawaii is among the top states with the greatest share of their urban Interstate highways considered congested.
  • Hawaii is among the top ten states with the busiest urban Interstates.
  • Hawaii is number 1 among states with the greatest share of their Interstate highways with pavements in poor or mediocre condition.
  • Hawaii is among the top ten states with greatest share of urban interstates that experience congestion during peak hours.
  • Hawaii is among the top ten states with greatest daily travel per-lane-mile on urban interstates.

For the family sitting in traffic for hours every day commuting to work and school, these facts are meaningless.  All they know is that a significant portion for their lives are lost sitting in a car.

The final EIS prepared for the Honolulu rail transit project--its purpose, need, and goals--help to address all of these issues.  And, when you consider how rail will reshape development patterns by bringing far flung, sprawled communities within walking distance to work, school, home, and recreation through a mix of reliable, safe, and efficient transportation options, well, what else is there to say?  

The path to great things is always paved with obstacles, but isn’t that true of anything worth doing?  We need to stay the course.

Monday, June 27, 2016

To Build or Not to Build: Honolulu Rail Redux

Once again, we are confronted with the question of whether to fully fund Oahu’s rail project.  I can't help but draw comparisons with recent world events, like Brexit.

Whether one agrees with the outcome of the UK vote to leave the European Union (52% to 48%), a lesson can be learned about making decisions based on passions and populism.  Many UK voters are only now considering the gravity of their vote.  Some are even asking their government for a “do over,” because their vote was a “protest vote.”  They didn’t mean it.

We aren't holding a referendum on rail, but the "in or out" question is just the same.  Should we fully fund the Oahu’s rail project, from start to finish, all 20-miles, 21-stations (and at some point in the near future, extensions to UH Manoa, West Kapolei, and Waikiki)?  This sounds like a simple question; however, like the question before UK voters, it's far more complicated.  When considering the ultimate question on rail, one should consider the purpose of the project, why Oahu needs it, and whether it will resolve the issue Oahu is trying to address in the least impactful way.

The construction and completion of Honolulu’s rail system as planned will have far reaching economic, social, and environmental impacts and benefits.  The overarching purpose of the project is to provide high-capacity rapid transit in the highly congested east-west transportation corridor between Kapolei and UH Mānoa.  The project is needed to improve mobility for travelers who face increasingly severe traffic congestion, improve transportation system reliability, provide accessibility to new development in support of adopted City land use plans, and improve transportation equity.

Rail will serve nearly 70 percent of Oahu's population and more than 80 percent of working taxpayers.  With the opportunity to create new communities and rejuvenate existing communities along the alignment, comes endless possibilities to ensure that housing options go vertical and not sprawl out horizontally, preserve the Island’s limited space, implement walkable communities, and reduce the cost of transportation for Hawaii’s families.  These are the kinds of communities that surveys show both millennials and our aging population want to live in, work in, and retire in.

Project ridership in 2030 is expected to be about 119,600 weekday passenger trips.  Rail will eliminate an estimated 40,000 car trips from our congested streets and highways.  Each four-car train can carry more than 800 passengers, the equivalent of more than ten buses.  Because it operates on its own elevated fixed rail, it will take just 12 minutes to get from the airport to the downtown station.

Is the fixed, elevated guideway and technology the best option?  The debate continues.  All we can do in a civilized democracy is establish a good process.  The rail decision process began before 2005 and included elected officials, experts, and the public.  Many options were considered and the majority ruled.  Subsequent judicial challenges of the environmental review process resulted in an outcome that ensured the avoidance, minimization, or mitigation of significant environmental impacts.

After more than a decade of planning, debate, technical reports, litigation, false starts, and finally construction, we find ourselves with a set of trains, several miles of guideway, and a nearly complete operations center.  Is it time to stop or only build a part of the project?  I hope not.  Honolulu's rail project is the democratically arrived at best option to address our quality of life.

As we consider what we do next, all factors must be taken into consideration.  As we learned from our friends in the UK, there are no do overs.

Tuesday, November 3, 2015

The Seminar Group Presents: Transit-Oriented Development in Hawaii

One of the largest public investments in the history of the City and County of Honolulu, the Honolulu Rail Transit project will fundamentally change how we live and do business.

Transit-oriented development (TOD) will increase property values near transit stations by providing the opportunity to take advantage of frequent transit service. The project will allow an unprecedented opportunity to direct growth to Honolulu’s Urban Core (the most populated region of the state) away from agricultural, open space, and rural areas; stimulate urban renewal projects near the 21 proposed rail stations along the approximately 20-mile route; support cost-efficient, consolidated infrastructure; and increase housing affordability by reducing one of the highest costs in a Hawaii family’s budget: transportation.

This seminar will provide key insights and analysis from experts and thought leaders on policy, planning, law, and real estate market issues related to TOD.


The full agenda and list of presentations and presenters can be found at http://www.theseminargroup.net/seminardetl.aspx?id=15.trAhi.  

Thursday, August 27, 2015

Ensuring Small Businesses Thrive During Rail Construction

A report by PolicyLink (a national research and action institute advancing economic and social equity), outlines successful strategies that have been used to help businesses survive and thrive in Seattle, Washington, and St. Paul, Minnesota.

Best practices identified in the report, include:

  • The right type of financial assistance must be available to meet business’s needs.
  • Outreach to businesses should begin well in advance of construction.
  • Business technical assistance is vital.
  • Communication is Key - Projects can have unpredictable timelines.
  • Strong advocacy and organizing by multiple partners (e.g., foundations, non-profits, government, private sector, universities, etc.).
  • In both Seattle and St. Paul, the cities played an important leadership role.

Seattle, Washington
In Seattle, a $50 million Community Development Fund ("CFD") was created.  The CFD was largely funded by the City of Seattle, which contributed $35 million of Community Development Block Grant ("CDBG") funding over seven years and $7.8 million from the City's general fund.  Qualified small businesses could apply for CFD funds for such things as relocation costs; business interruptions payments; and low-interest loans for advances related to operations, equipment, and tenant improvements.

After construction of the affected rail line in 2009,  the retention rate was 85 percent for all businesses, and 90 percent for businesses that had received assistance. 

St. Paul, Minnesota
The City of St. Paul created a $4 million Ready for Rail Business Support Fund through a Joint Powers Agreement between the Met Council and the Housing and Redevelopment Authority of the City of St. Paul.  The loan fund was originally seeded with a small grant by the Central Corridor Funders’ Collaborative, The Met Council, and the City of St. Paul.  The fund is administered by two local nonprofits.

In addition to the loan program, 40 business and community leaders came together to form the Business Resources Collaborative ("BRP") to support small businesses through the construction process.  In partnership with community development organizations, they hired “small business consultants” to do extensive outreach to the businesses along the corridor.  Assistance provided, to about 95 percent of qualifying businesses, included support with accounting, taxes, and marketing. About $1.2 million was spent on direct technical assistance primarily funded by the Central Corridor Funders’ Collaborative, St. Paul Foundation, and Bigelow Foundation.

Due in large part to the work of BRP and its collaborators, of the 1,144 businesses located along the corridor, 84 closed or relocated, and 84 new businesses opened.  Nearly two-thirds of businesses expected their sales would increase, post construction.

For more, read the full report, Business Impact Mitigations for Transit Projects, PolicyLink, November 2013.



Tuesday, August 11, 2015

Land Use and Planning Law Can be Beautiful--Literally

A word cloud is an image composed of words used in a particular text, in which the size of each word indicates its frequency.  The word clouds below show the 50 most frequently used words in selected sections of the City and County of Honolulu's ordinances related to land use.


Waikiki Special District
ROH Sections 21-9.80 through 21-9.80-9.
TOD Special Districts
ROH Sections 21-9.100 through  21-9.100-4

Interim planned development – Transit (IPD-T) Projects
ROH Section 21-9.100-5

Friday, July 10, 2015

9th Circuit Court: Conservation Efforts Outweigh Economic Impacts

The appeal in Building Industry Association v. U.S. Department of Commerce arose under the Endangered Species Act (“ESA”) and the Administrative Procedure Act (“APA”).  It required the 9th Circuit Court of Appeals to review the designation of critical habitat for a threatened species–the southern distinct population segment of green sturgeon (the “Southern DPS of green sturgeon”)–and the regulations implementing that designation.

Green Sturgeon
The context for this litigation is the impact of the designation on local property owners and on the residential construction industry in the Sacramento-San Joaquin Delta and within the Sacramento River basin of Northern California. 

In 2001, the Center for Biological Diversity (“CBD”), along with two other organizations, petitioned National Marine Fisheries Service (“NMFS”) (NMFS is a service under NOAA in the Department of Commerce) to list the green sturgeon as “threatened” or “endangered” under the ESA, and to designate critical habitat.  In 2005, NMFS published a proposed rule listing the Southern DPS as “threatened.”  In 2010, NMFS designated approximately 11,421 square miles of marine habitat, 897 square miles of estuary habitat, and hundreds of additional miles of riverine habitat in Washington, Oregon and California as critical habitat.

Under the ESA, as soon as a species has been listed as either threatened or endangered, agencies are required to consider designating critical habitat. Critical habitat is defined as “the specific areas within the geographical area occupied by the species . . . on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection.” Before designating any particular area as critical habitat, an agency must “tak[e] into consideration the economic impact, the impact on national security, and any other relevant impact,” of the designation. The agency “may exclude any area from critical habitat if [it] determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat” unless exclusion will result in the extinction of the species. (Citations omitted.) 

Appellants’ arguments considered by the Court included the following:
  • When designating critical habitat for the Southern DPS of green sturgeon, NMFS failed to balance the conservation benefits of designation against the economic benefits of exclusion from designation. 
  • NMFS’s decision not to exclude certain areas from critical habitat designation is subject to judicial review and NMFS abused its discretion in not excluding those areas.
  • As part of the designation process, NMFS was required to comply with the National Environmental Policy Act (“NEPA”).
The Court held in favor of  NMFS as follows:
  • When considering the economic impact of its designation, NMFS complied with section 4(b)(2) of the ESA and was not required to follow the specific balancing-of-the-benefits methodology argued for by Appellants.
  • Section 4(b)(2) of the ESA establishes a discretionary process by which the agency may exclude areas from designation, but does not set standards for when areas must be excluded from designation.  An agency’s discretionary decision not to exclude an area from designation is not subject to judicial review.
  • Appellants’ NEPA claim fails because NEPA does not apply to critical habitat designations. The court cited, inter alia, Douglas Cnty. v. Babbitt, 48 F.3d 1495, 1501–08 (9th Cir. 1995) (explaining that critical habitat designations are not subject to NEPA because: (1) the ESA displaced the procedural requirements of NEPA with respect to critical habitat designation; (2) NEPA does not apply to actions that do not alter the physical environment; and (3) critical habitat designation serves the purposes of NEPA by protecting the environment from harm due to human impacts).
This opinion should give landowners heartburn and Congress a lot to think about regarding potential ESA amendments.  The next step for the Appellants in this case is to request review by the U.S. Supreme Court.