When is the “earliest practical time” to prepare an environmental assessment under Hawaii’s environmental statutes?
In Sierra Club v. State of Hawaii Office of Planning, 109 Haw. 411, 126 P.3d 1089 (Jan. 27, 2006), the court determined if and when an environmental assessment is required during the boundary amendment process.
The property owner asked the State Land Use Commission to amend the land use classification from “agricultural” to “urban” to permit it to develop the “Koa Ridge” project in central Oahu. This procedure, known as a “boundary amendment,” is required by Hawaii’s top-down system of land use, under which the State classifies all land into one of four categories: agricultural, conservation, rural, or urban. Only then are the counties permitted to separately zone the land classified as urban. The “boundary amendment” process, despite its unusual moniker, is similar to a rezoning.
The Sierra Club and others intervened in the petition process, arguing that before the LUC was permitted to grant the boundary amendment, the agency must have completed an Environmental Assessment under the Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343 to determine whether a full-blown Environmental Impact Statement was required. Section 343-5 of HEPA requires an agency to undertake an EA if an applicant proposes the “use of state lands.”
The intervenors claimed that the Koa Ridge project would do so because it contemplated construction of a sewage and water lines which would require tunneling under state-owned land. The landowner agreed that an EA was required, but argued it could be accomplished later because section 343-5 requires only that the agency prepare the EA “at the earliest practical time.” The landowner asserted it was too early in the process to accurately set out the possible environmental impacts since the project at the boundary amendment stage was preliminary and conceptual, and the end product might be different.
The court disagreed, holding that because environmental information is important, such information must be provided sooner rather than later, since a later determination may make the final decision fait accompli because the agency may be less inclined to disapprove a request further down the path after more time and money are spent:
We agree with the reasoning of Citizens [for Prot. of N. Kohala Coastline v. County of Hawaii, 91 Haw. 94, 979 P.2d 1120 (1999)] that early environmental assessment comports with the purpose of HEPA to alert decision-makers early in the development process because, “[a]fter major investment of both time and money, it is likely that more environmental harm will be tolerated.”
The court did not address what would happen if, as the landowner predicted, the scope of the project was altered in the future, either on the landowner’s initiative, or in response to a requirement from the LUC, which has the discretion to impose conditions on boundary amendments. Under the court’s reasoning — environmental information is “important,” and care must be taken to insure that the agency’s decision to approve is not a foregone conclusion — it is not difficult to imagine that yet another EA could be required.