Yesterday, the Kauai circuit court granted a permanent injunction, and ordered that Kauai Springs‘s applications for three zoning permits should not have been denied by the Kauai Planning Commission in January 2007. The case is an appeal from an agency decision under the HawaiiAdministrative Procedures Act (a procedure known in other jurisdictionsas a petition
Check out Jay Fidell’s op-ed in the Honolulu Advertiser, “Appeals court decision threatens our biotech sector” about the recent Intermediate Court of Appeals decision in Ohana Pale Ke Ao v. Bd. of Agriculture, State of Hawaii, No. 27855 (May 21, 2008).
In that case, the ICA held that the state must complete an environmental assessment (EA) prior to approving a permit allowing the importation of genetically engineered algae. Jay writes:
The case involves a permit for importation of a geneticallyengineered algae, a choice target of environmental activists. But thecourt decision is not limited to genetically modified organisms: Itcovers all animal and plant organisms, GMO and otherwise. And itdoesn’t affect just permit applications — it also affects permitsalready granted for organisms already in the state. Agriculturalresearch and cultivation also will undoubtedly be affected. Hard casesmake bad law.
The retroactive nature of the decision reminds usof the Superferry. There, the applicant did everything the Departmentof Transportation asked for and got its approval. Then, years later,the court imposed additional requirements. How different is that fromwhat happened here? The applicant here did everything Agriculture askedfor and got its permit. Then, years later, the court imposed additionalrequirements. How can you rely on what government tells you? How canyou do a business plan? How can you get investors?
Our summary of the decision here.
Continue Reading Op-Ed on GMO Algae Case
Yesterday, we filed the Reply Brief in Kauai Springs‘ appeal from the January 2007 decision by the Kauai Planning Commission to deny three zoning permits to the small, Kauai-family-owned water bottling company.
For more information about the case, here are some links to earlier media coverage:
The Hawaii Intermediate Court of appeals has issued an opinion in Ohana Pale Ke Ao v. Board of Agriculture, State of Hawaii, No. 27855 (May 21, 2008). The court ruled on two issues related to the importation of genetically-modifiedalgae into Hawaii by the tenant of a State-owned facility on the BigIsland of Hawaii:
This appeal presents two issues: (1) whether the Board wasrequired to comply with the Hawaii Environmental Policy Act (HEPA),Hawaii Revised Statutes (HRS) chapter 343, before approving a permit toimport genetically engineered (GE) algae for production in a facilityon state lands; and if so, (2) whether two prior environmental impactstatements (EISs) prepared for the state lands where production of theGE algae is planned satisfied the Board’s HEPA obligations.
Slip op. at 1-2. I attended the oral arguments and blogged about the issues in the case here.
The ICA held the Board should have required an EA. The court rejected the Board’s argument that the permit procedures in Haw. Rev. Stat. ch. 150A, which were enacted after chapter 343 and contain a detailed process for the importation of microorganisms worked an implied repeal of the EA requirement. The court held that the plan to grow the organisms at the state facility is “an action that proposes the use of state land,” slip op. at 13, and therefore “HRS § 343-5 plainly and unambiguously required the preparation of an EA before the Board could approve [the] application.” Id. The court held that although chapters 343 and 150A may “overlap in their application and purpose, they do not conflict and both can be given effect.” Id. at 16.
On the second issue, the ICA held the two earlier EISs did not satisfy the Board’s obligations:
The two EISs, which were prepared more than three and two decades ago, respectively, confirm that the NELH and HOST parks were still conceptual or in their infancy stages when the EISs were prepared. It is clear from the EIS that as the nature and details of individual projects to be conducted at either park became known, further HEPA review was expected.
Slip op. at 21. The ICA did not address how this holding squares with section 343-5’s requirement that the EA be accomplished at “the earliest practical time.” The Hawaii Supreme Court addressed this requirement in the “Koa Ridge” case. Sierra Club v. State of Hawaii Office of Planning, 109 Haw. 411, 126 P.3d 1089 (Jan. 27, 2006).
Continue Reading HAWICA: EA Required For Importation of GMO Algae
Today we filed the Opening Brief in Kauai Springs‘ appeal from the January 2007 decision by the Kauai Planning Commission to deny three zoning permits to the small, Kauai-family-owned water bottling company.
The case is an appeal from an agency decision under the Hawaii Administrative Procedures Act (a procedure known in other jurisdictions as
In Aspen Creek Estates, Ltd. v. Town of Brookhaven, 2007 NY Slip Op 09583 (Dec. 4, 2007), the Appellate Division of the New York Supreme Court approved a taking of private property to preserve it as farmland. The court’s majority held that the goal of preserving farmland generally qualifies as a public use/purpose, and
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
When does a person or organization have enough legal interest in an issue such that it can be a plaintiff in lawsuit? Are there any systematic checks in place to keep the courts from being co-opted for political ends? These were key issues raised by the Hawaii Supreme Court’s opinion in the “Hawaii Superferry EIS case,” Sierra Club v. State of Hawaii Dep’t of Trans., No. 27407 (Aug. 31, 2007). This post looks at the procedural issue of “standing,” an issue that took up a majority of the court’s 104-page opinion.
An earlier post focuses on the substantive issue of whether the State DOT erred when it determined that improvements to Maui’sKahului Harbor necessary to the Superferry’s Maui operation were within the categorical administrative exemptions tothe Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343,and therefore no Environmental Assessment was necessary.Continue Reading ▪ Superferry EIS Case Summary pt. II: Throwing Open The Barn Door After the Horses Have Been Let Out
What purpose is served by the Legislature providing for an environmental assessment “exemption” if there are always exceptions to the exemption?
That is the question raised by the Hawaii Supreme Court’s opinion in the “Hawaii Superferry EIS case,” Sierra Club v. State of Hawaii Dep’t of Trans., No. 27407 (Aug. 31, 2007).
This
To my colleagues at the LINC conference in D.C., thank you for the opportunity to present the topic. Here are links to the cases discussed: