I sat in on today’s oral arguments in the Hawaii Intermediate Court of Appeals (the nondiscretionary appeals court of first resort) in an interesting case, Ohana Pale Ke Ao v. Bd. of Agriculture, State of Hawaii, No. 27855. From the arguments and a quick review of the briefs, the primary issue in the case is whether the Board of Agriculture was required to undertake an Environmental Assessment pursuant to Haw. Rev. Stat. ch. 343 prior to granting a permit for the importation of genetically-modified algae into Hawaii by the tenant of a State-owned facility on the Big Island of Hawaii.
The recording of the arguments can be downloaded here (63mb mp3).
Several “community groups” filed suit against the Board, claiming that an EA was required because the imported GMO algae would be used in the state-owned facility, and therefore “[p]ropose[d] the use of state or county lands,” a triggering event under Haw. Rev. Stat. § 343-5. In December 2005, the Third Circuit Court granted the community groups’motion for summary judgment, holding that the Board should haveundertaken an EA as a matter of law.
On appeal, the Board argued that there was no new “use” of state-owned land because the state’s facility was already being used for growing and studying algae, just not the particular GMO algae at issue; indeed, the GMO algae would result in less use of the facility, not more. The Board also argued that the permit procedures in Haw. Rev. Stat. ch. 150A, which were enacted after chapter 343 and contain a detailed process, worked an implied repeal of the EA requirement. Today’s questions from the three-judge panel (Foley, Watanabe, and Nakamura) focused on two issues.
First, whether the continuation of an existing use of state land — although processing a new product in lesser quantities — qualified as a “use” of state land within the meaning of § 343-5. The plaintiffs’ counsel stressed that “use” means use, and it is undisputed that the imported GMO algae would be using the state-owned facility, and therefore would be using state lands. The Board argued that no new “use” was proposed, just a different product, and that under the plaintiffs’ theory of what defines “use,” the act of driving a car on state-owned streets could be considered a “use of state lands” that would trigger an EA. After prompting by Judge Nakamura, the plaintiffs’ counsel countered that argument, suggesting an overly broad reading of “use” could be limited by asking whether the activity (in this case the importation) was an “integral partof the project.” Judge Nakamura extracted a concession from the plaintiff’s counsel who admitted that if the GMO algae was imported to be used in a privately-owned facility rather than one owned by the state, there would be no issue of an EA at all.
The second thread of questioning was whether by enacting chapter 150A, the Legislature intended to limit chapter 343’s applicability. Section 150A-6.3 contains detailed standards, and the Board has promulgated administrative rules with a fairly stringent process to consider import permit applications. Judge Foley asked whether this statute was the primary protection for the environment and public health. Judge Foley, joined by Judge Nakamura, then asked the plaintiffs’ counsel whether the Legislature’s intent to “streamline” the import permit process by enacting chapter 150A would be rendered meaningless if the court did not hold that the EA triggers were not applicable. If the Legislature did not intend to streamline the permit process by elimination of an EA, how is the process streamlined?
Finally, Judge Watanabe raised an interesting issue, the question of whether the state law requiring agencies to adopt rules to process permits within a definite time, or they are deemed approved, would by impacted by the requirement of an EA/EIS, and whether outside vendors would have to be solicited by the Board. Haw. Rev. Stat. § 91-13.5. Counsel for the plaintiffs responded by suggesting that an EA/EIS would not add significantly to the processing time, and could be accomplished “in house” by the Board.
Although I am loathe to attempt a prediction in this case, the Hawaii Supreme Court (as evidenced by the recent “Superferry” opinion and a string of cases preceding it) has demonstrated it is more than receptive to arguments for a very low threshold for claims that a particular activity triggers a chapter 343 EA/EIS. What the Supreme Court has not done is articulate any meaningful limitations on those triggers. Will the ICA in this case? Stay tuned.