Thursday, June 13, 2019

Hawaii's New EIS Rules become Effective in August 2019, Here's What You Need to Know

The Office of Environmental Quality Control ("OEQC") and State Environmental Council ("Council") submitted the final proposed rules to the Governor’s Office in April 2019.  Governor Ige announced that he plans to sign the rules on July 30, 2019, and the rules will take effect on August 9, 2019.

The new rules will repeal the existing Hawai‘i Administrative Rules (HAR) Chapter 11-200, and adopt a new chapter, HAR Chapter 11-200.1.  OEQC provides a Rationale for Final Proposed HAR Chapter 11-200.1.

Here are some things to consider when the new rules take effect:
  • These rules do not amend or change the requirements of HRS chapter 343.
  • The following terms have not changed:
    • EA: environmental assessment
    • EIS: environmental impact statement
    • EISPN: environmental impact statement preparation notice
    • FONSI: finding of no significant impact
    • NEPA: National Environmental Policy Act
  • Save the trees.  
    • Materials must be submitted electronically to the OEQC for publication in The Environmental Notice
    • Agencies must provide Exemption Notices electronically
    • No longer required to mail individual responses to commenters—it will be posted online as part of the HEPA document
    • Some EA and EIS documents must be made available in paper, for example:
      • EA to the library in the area most affected by the action
      • Draft and final EA filed with the State Library’s Hawaii Documents Center
  • Clearer guidance for programmatic documents.  
    • A programmatic (as distinguished from a project-based) environmental review should be "enough to make an informed choice among program-level alternatives and broad mitigation strategies"
  • Supplemental documents.  
    • To determine whether an agency is eligible to prepare a supplemental EIS, apply the following criteria:
      • Whether the proposed action was a component of, or is substantially similar to, an action that received an exemption, FONSI, or an accepted EIS;
      • Whether the proposed action is anticipated to have direct, indirect, and cumulative effects similar to those analyzed in a prior exemption, final EA, or accepted EIS; and
      • In the case of a final EA or an accepted EIS, whether the proposed action was analyzed within the range of alternatives.
      • If the answer is “yes” or “no”, the agency may publish the determination with the OEQC for publication in the periodic bulletin.
  • New exemptions process.
    • Agencies would have seven years to reorganize and update their exemption lists to comply with the rules
  • Climate change added to significance criteria.
    • Adaptation.  Agencies must consider whether a proposed action is likely to have a substantial adverse effect on or is likely to suffer damage by being located in a sensitive area such as the sea level rise exposure area; SLR maps should be included in EAs and EISs to demonstrate the potential vulnerability
    • Greenhouse gas reduction.  Agencies must consider whether a proposed project will emit substantial greenhouse gases at any stage or may emit substantial greenhouse gases as an indirect or cumulative impact.
  • No EISPN required, but...
    • May skip an EISPN and prepare an EIS when there is clear potential for a significant impact
    • BUT, a public scoping meeting is required as well as incorporation of public feedback from the scoping meeting into the draft EIS
  • Public comment periods may be extended with notice.
    • Thirty days for draft EA and EISPN documents
    • Forty-five days for draft EIS documents
    • Comments received between publication periods do not have legal standing because they are not submitted during a legal window
  • Public comments—less paper.
    • A written response to be physically mailed to each commenter is no longer required.
    • Agencies and applicants may respond to comments based on the “grouping” model allowed under NEPA
    • List commenters whose comments are being addressed under each topic heading or section
    • All comment letters containing substantive comments must be appended to the final EIS or EA
    • Form letters may be responded to in a single response appended to the HEPA document if not using the grouping approach
    • Form letters that have additional substantive points be appended in full to the document, and receive a response
  • EIS scoping meeting are required on each island affected by a proposed action, but...
    • No need to transcribe and respond
    • Oral comments may be recorded and a summary provided in the draft EIS
  • NEPA-HEPA joint documents.
    • A single document and single comment period that satisfies both federal and state requirements can be used to satisfy both NEPA and HEPA
    • The agency must make an independent determination, pursuant to chapter 343, HRS, of the necessary level of environmental review
  • Do the new rules apply to my proposed action?
    • For EAs, if the draft EA was published by the office prior to the adoption of this chapter and has not received a determination within a period of five years from the implementation of this chapter, then the proposing agency or applicant must comply with the requirements of this chapter
    • For EISs, if the EISPN was published by the office prior to the adoption of this chapter and the final EIS has not been accepted within five years from the implementation of this chapter, then the proposing agency or applicant must comply with the requirements of this chapter
    • Exemption lists that have received concurrence under chapter 11-200 may be used for a period of seven years after the adoption of this chapter

Tuesday, November 6, 2018

U.S. Court of Appeals 9th Cir. Reviews King County Metro Ad Policy: Controversial Terrorism Ad Gets a Pass

In Am. Freedom Def. Initiative v. King County, 904 F.3d 1126, 1129 (9th Cir. 2018), the court reviews King County Metro's denial of a request to post a controversial ad on a King County Metro (hereinafter, "County" or "Metro") bus. 

The court followed past decisions holding that a transit advertising program is a nonpublic forum.  Consequently, the higher First Amendment freedom of expression standard of strict scrutiny does not apply; instead, Metro's policies must be reasonable and viewpoint neutral.  On its face, the court held that two of the three prohibited content policies by Metro were valid on its face.  However, Metro's prohibited category related to demeaning or disparaging content was invalid, and Metro's application of the harmful or disruptive content category was improper.

Ad denied by Metro is similar to this ad by U.S. State Department. Source: SeattlePI


A three-judge 9th Cir. panel reviewed an appeal from the U.S. Dist. Court for the Western District of Washington.

The panel affirmed in part and reversed in part.


Metro accepts ads for public display unless the ads contain certain categories of prohibited content, including false statements, disparaging material, and content that may disrupt the transit system.

Metro determined that Plaintiffs' ad concerning global terrorism contained all three types of prohibited content under Metro's policy: (1) False or Misleading, (2) Demeaning or Disparaging, and (3) Harmful or Disruptive to Transit System. Plaintiffs then submitted a revised, factually accurate ad, which the County rejected under the remaining two categories.

The falsity clause in Metro's transit advertising policy states that Metro will reject any ad that is:
False or Misleading. Any material that is or that the sponsor reasonably should have known is false, fraudulent, misleading, deceptive or would constitute a tort of defamation or invasion of privacy.
The panel concluded that "[t]he falsity standard meets constitutional scrutiny, both facially and as applied."

The disparagement clause in Metro's transit advertising policy states that Metro will reject any ad that is:
Demeaning or Disparaging. Advertising that contains material that demeans or disparages an individual, group of individuals or entity. For purposes of determining whether an advertisement contains such material, the County will determine whether a reasonably prudent person, knowledgeable of the County's ridership and using prevailing community standards, would believe that the advertisement contains material that ridicules or mocks, is abusive or hostile to, or debases the dignity or stature of any individual, group of individuals or entity.
The panel concluded that the "disparagement standard discriminates, on its face, on the basis of viewpoint."

The disruption clause in Metro's transit advertising policy states that Metro will reject any ad that is:
Harmful or Disruptive to Transit System. Advertising that contains material that is so objectionable as to be reasonably foreseeable that it will result in harm to, disruption of or interference with the transportation system. For purposes of determining whether an advertisement contains such material, the County will determine whether a reasonably prudent person, knowledgeable of the County's ridership and using prevailing community standards, would believe that the material is so objectionable that it is reasonably foreseeable that it will result in harm to, disruption of or interference with the transportation system.
The panel held that "the disruption clause, like the earlier one, survives facial scrutiny."


(1) Metro permissibly rejected the factually inaccurate ad because the First Amendment does not require Metro to display patently false content in a nonpublic forum.

(2) Metro's rejection of the revised ad does not withstand scrutiny. Applying Matal v. Tam, 137 S. Ct. 1744 (2017), Metro's disparagement standard discriminates, on its face, on the basis of viewpoint.

(3) The disruption standard is facially valid but, on this record, Metro unreasonably applied the standard to Plaintiffs' ad. The panel disagreed with Metro that "it is reasonably foreseeable that Plaintiffs' ad will harm the transit system," because the "ads may perpetuate harmful stereotypes and may upset riders which, in turn, may cause a decrease in ridership." The panel based its conclusion primarily on the fact that "Metro approved a very similar ad—the State Department's own 'Faces of Global Terrorism' ad—which actually ran for a period of nearly three weeks. . . , but Metro's transit system did not experience any harm, disruption, or interference."

Tuesday, November 28, 2017

Elusive Affordable Housing Policy

My current work at the Hawaii Community Development Authority has me thinking a lot about affordable housing.

Halekauwila Place, an affordable rental project in Kakaʻako.
Among other things, the development guidance policy for the Kakaʻako Community Development District requires, “integration both vertically and horizontally of residents of varying incomes, ages, and family groups; and an increased supply of housing for residents of low- or moderate-income may be required as a condition of redevelopment in residential use.”

While 34 percent of units built in Kakaʻako since 1987 were built as reserved, workforce, or low income housing, there is still great demand in all income categories.  This problem is not new in Hawaii, and various policies, programs, and initiatives have been proposed by the various counties and the state to address the issue.  However, the solution is elusive.

I recently came across two articles that give some insight into the challenge of creating effective affordable housing policies:

Cortright’s piece explores the rhetoric of the affordable housing debate.  The rhetoric has Balkanized stakeholders into unbending pluralities; however, there is little data to support any one side of the issue.  Bertolet’s piece is a creative illustration of the “more supply will solve the problem” philosophy, which challenges the “you can’t build your way out of the problem” philosophy.  Both lack solid data to support either conclusion, but both sound reasonable.   

Would a trusted, independent think-tank in Hawaii help?  It would collect, model, and interpret housing data; propose policies, tools, and programs; and get us closer to the objective we all can agree on: Housing choices for everyone in every income group.

Thursday, April 6, 2017

Climate Change Office on City's Budget Agenda

The City & County of Honolulu is considering the Mayor’s proposed budget.

The Mayor’s budget includes staff and funding for the Office of Climate Change, Sustainability, and Resiliency that was created by voters in the recent City Charter amendment process.  

The agenda for next Tuesday’s Special Budget Committee meeting has been posted.  Click on Bill 25 (agenda item #5) to view the budget request.  The agenda includes information on how to submit testimony.  I used the electronic option.  Here is what I sent:

Dear Chair Manahan and Committee Members:

Please support the budget request of the Mayor regarding the staffing and funding for the Office of Climate Change, Sustainability, and Resiliency.

As you know, the voters of Oahu overwhelmingly approved amending the City Charter to create the Office. Serving as the initial chair for the Charter Commission, one of the first substantive issues for consideration brought before the Commission was the impact of climate change on the people of Oahu.

Experts on the matter from the University of Hawaii showed how Hawaii will be uniquely impacted by climate change. The issue is not only sea-level rise, which is easy enough to observe for people who grew up in the islands, but also the following:

  • Recorded warming air temperature in Hawaii has quadrupled in the last 40 years,
  • Hawaii has seen an overall decline in rainfall in the last 30 years,
  • Sea surface temperatures have warmed, and
  • Global ocean acidity has increased by 30 percent.

These local impacts are stressing the ability of our environment to protect us from storm events, to feed us, and to keep us healthy. It is killing our reefs and eroding our beaches, which support our number one economic engine, tourism. The future is bleak, unless we take actions to understand the threat, address our weaknesses and strengths, and begin to strategically invest in making our communities resilient in a post-climate change future.

The issue of climate change is multidimensional, and will require a coordinated effort across agencies, programs, and branches of government. The Office of Climate Change, Sustainability, and Resiliency is intended to serve that purpose and should be given the resources it needs to accomplish this important task. If done right, the work of the Office will undoubtedly benefit current and future generations.

Thank you for your consideration and your difficult task of preparing our City’s budget.

Jesse K. Souki

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