We aren’t officially an “environmental law” blog, and when we do cover the issue, it is mostly on the periphery. However, in 2008, we hit a couple of significant issues that had some relevance to land use law.
First, in the U.S. Supreme Court’s first decision of the Term, Winter v. Natural Resources Defense Council, Inc.,No. 07-1239 (Nov. 12, 2008), the Court held that prior to issuing preliminary injunctions preventing the Navy from training with mid-frequency active sonar, the lower courts must balance the equities and the public interest, and that the Navy’s interest in training for deployment clearly outweighed the environmental concerns of the plaintiffs. Why did a land use law blog care about a case involving the Navy’s useof sonar in training exercises off the California coast? First, as weexplained here,the case is philosophically interesting because of the argumentsregarding when courts should defer to the judgment of the executivebranch and the military. Second, we filed an amicus brief in the caseon behalf of nine retired Admirals and several service support groups(posted here), supporting the Navy’s arguments. My Damon Key colleague Mark Murakami and I even published an op-ed in the Honolulu Advertiser about the decision.
Second, in Nuuanu Valley Ass’n v. City & County of Honolulu, No. 28599 (Oct. 24, 2008), the Supreme Court of Hawaii clarified when a project that is not being built on state or county land meets the definition of “use” of such lands triggering review under the Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343.The developer of private residential land in urban Honolulu sought tosubdivide the property, which required hooking up new drainage systemto existing lines. The court held that the connection of new drainage lines to an existing system did not meet thedefinition of “use” of state or county land, even though the existingsystem is public. More here.
Finally, the Hawaii Intermediate Court of Appeals, in Ohana Pale Ke Ao v. Board of Agriculture, State of Hawaii,No. 27855 (May 21, 2008), held that the State Board of Agriculture wasrequired to undertake an Environmental Assessment under Hawaii statelaw prior to approving a permit for the importation ofgenetically-modified algae for processing in facility on state-ownedland at which non GMO algae was already being processed. More here.