On May 22, 2009, this blog summarized the Hawaii Intermediate Court of Appeal's ("ICA") decision (upholding the trial court's decision) that the Turtle Bay Resort subdivision application did not require a separate supplemental EIS. See Appellate Court Issues Opinion in Turtle Bay EIS Case. In this case, an EIS was prepared in 1985 for the Turtle Bay expansion project and preliminary subdivision approval was subsequently granted in 2006.
The Plaintiff's appealed the ICA decision and argued that the Hawaii Supreme Court should adopt ICA Judge Nakamura's dissent, wherein he opined that the relevant rules require the completion of a supplemental EIS “when significant changes to the anticipated environmental impacts of a proposed action become apparent such that ‘an essentially different action’ is being proposed.” Judge Nakamura's dissent made a broader interpretation of the applicable state regulations which require a supplemental EIS only when there is a "change in a proposed action," which would include actions that have "changed substantively in size, scope, intensity, use, location or timing[.]" See HAR §11-200-26. However, under the plain language of HAR §11-200-26, the ICA determined that the proposed Turtle Bay expansion project assessed in 1985 did not change; therefore, a supplemental EIS was not required in 2006.
The Hawaii Supreme Court heard arguments on December 17, 2009, which have been posted in its entirety in its Recordings Archive. The court's opinion on whether it should follow the trial court and ICA or the dissenting opinion of Judge Nakamura is forthcoming.
For more on environmental laws that impact Hawaii, see Environmental Law.