Oral Argument Preview, Part I: Hawaii Supreme Court Considers Whether A Change In “Context,” But Not The Project, Triggers A Supplemental EIS

Posted on December 16, 2009

On Thursday, December 17, 2009, at 9:00 a.m. Hawaii time, the Hawaii Supreme Court will hear oral arguments in Unite Here! Local 5 v. City and County of Honolulu. Note: Justice Recktenwald is recused and Circuit Judge Derrick Chan will be taking his place.

This post will review the issues in the case, and provide links to the parties’ and the amici briefs. In part II, we will summarize the arguments made by the various parties.

My colleague Mark Murakami, who blogs over at hawaiioceanlaw.com will be live blogging the arguments here (mirrored here). Tune in a few minutes before 9:00 when he goes live. I will also be commenting.

[Disclosure: although I have not participated in this case, two of my Damon Key colleagues — Mark, and Greg Kugle — have. They represented a party in the circuit court; Greg filed an amicus brief in the Supreme Court.]

In this appeal, which is before the Supreme Court on a discretionary application for a writ of certiorari, the court is reviewing the Intermediate Court of Appeals’ decision reported at 120 Haw.457, 209 P.3d 1271 (Haw. Ct. App. 2008), and which is available here. The ICA held that the Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343 does not require a supplemental environmental impact statement when a proposed project has not changed, but the “context” allegedly has. In other words, the development is the same, but the environment is not.

The court is reviewing this Question Presented:

Under HRS Chapter 343 and its enabling rules, is a supplemental environmentalreview required when there are significant changes to a project’scircumstances, such as increased environmental and community impacts,or are supplemental reviews limited solely to changes in project design?

The Judiciary’s web site previews the issues:

On October 13, 2009, this court accepted theapplication for writ of certiorari, filed September 8, 2009, bypetitioners/plaintiffs-appellants Keep the North Shore Country (KNSC)and Sierra Club, Hawai`i Chapter (Sierra Club) [hereinafter,collectively, plaintiffs] to review the Intermediate Court of Appeals’(ICA) June 12, 2009 judgment on appeal, entered pursuant to its May 22,2009 published opinion, Unite Here! v. City & County of Honolulu,120 Hawai`i 457, 209 P.3d1271 (App. 2009). Therein, the ICA affirmed the Circuit Court of theFirst Circuit’s June 4, 2007 amended final judgment in favor ofrespondents/defendants-appellees Kuilima Resort (Kuilima), as well asthe City and County of Honolulu and Henry Eng, the director of theDepartment of Planning and Permitting (DPP) [hereinafter, County][hereinafter, collectively, defendants].

Briefly stated, this case arises from the proposedexpansion of the Kuilima Resort at Turtle Bay on the North Shore ofO`ahu for which an environmental impact statement (EIS) was completed,pursuant to the Hawai`i Environmental Policy Act (HEPA) (codified asHawai`i Revised Statutes (HRS) chapter 343), and accepted in 1985 bythe Department of Land Utilization (DLU) [hereinafter, the 1985 EIS].The dispute centers around whether Kuilima’s subdivision application,filed in 2005, triggered the need for a supplemental EIS (SEIS),pursuant to the administrative rules underlying HEPA, specifically,Hawai`i Administrative Regulations (HAR) §§ 11-200-26 and 11-200-27(governing SEISs). The circuit court, in granting summary judgment infavor of the defendants, ruled that a SEIS was not required, and theplaintiffs appealed.

On appeal, a majority of the ICA agreed with thecircuit court, holding, inter alia, that, pursuant to the plainlanguage of HAR §§ 11-200-26 and 11-200-27, a SEIS was required onlywhere there was a substantial change in the “action,” see HAR §11-200-26, and that, inasmuch as the defendants were not substantiallychanging the proposed expansion itself, no SEIS was required.Then-Associate Judge Nakamura dissented, asserting that, in his view,the relevant rules required the completion of a SEIS “when significantchanges to the anticipated environmental impacts of a proposed actionbecome apparent such that ‘an essentially different action’ is beingproposed.” Unite Here!, 120 Hawai`i at 468, 209 P.3d at 1282.

On application, the plaintiffs urge this court toadopt Judge Nakamura’s view that HEPA mandates the completion of a SEISwhere there has been a change in circumstances or increasedenvironmental impacts and that, therefore, the DPP (the acceptingagency for Kuilima’s subdivision application) should have requiredKuilima to do so.

The briefs in the appeal are truncated, due to the summary nature of the cert review process in Hawaii state courts. Instead of full re-briefing, the Supreme Court has before it the Application for Ceritorari and the responsive briefs, which are fairly short, plus the briefs of amici. The court also has available the full briefing from the ICA.