This is Part II of our preview of the oral arguments in Unite Here! Local 5 v. City and County of Honolulu, the case in which the Intermediate Court of Appeals held that unless the project changes, a supplemental EIS is not required under the Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343.
In this post, we summarize the arguments of the parties and the amici. Part I of our preview (the summary of the issues and links to the opinion below and the briefs) is posted here.
A reminder: 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.
Keep the North Shore Country - Sierra Club, Hawaii Chapter
The parties seeking to overturn the ICA's decision are Keep the North Shore Country and the Hawaii Chapter of the Sierra Club. Their brief asserts the ICA "gravely erred" (one of the standards of review in cert review) when it interpreted chapter 353 and its implementing rules to mean that a "Supplemental Environmental Impact Statement" is only required when a developer's project substantively changes. The applicants assert this holding was "unreasonable and absurd" because a SEIS should be required when the "circumstances" have changed, even if the proposal does not. In other words, if the physical surroundings change but the project stays, the same, a SEIS should be completed to measure the impact of the project to the "new" environment.
The application argues the "ICA decision is tantamount to eliminating all supplemental review. As a practical matter, any developer could simply avoid changes to the design of the project, regardless of changes to the physical surroundings, impacts on the community, or potential environmental or health consequences of an 'outdated' design, in order to avoid the potential of further review." This undercuts the purpose of environmental review, as well as the language of chapter 343.
Interestingly, their argument focuses first on the policy of chapter 343, rather than the language, and starts off by noting "it is well settled that this court may depart from a plain reading of a statute where a literal interpretation would lead to absurd and/or unjust results." App. at 7 (quoting Morgan v. Planning Dep't, 104 Haw. 173, 185-86, 86 P.3d 982, 994-95 (2004)). As anyone who practices regularly in the Hawaii Supreme Court knows, the court almost always begins its analysis with the language of the provision at issue, whether it is the constitutional text or the words in a statute. Thus, most briefs start off by reviewing the "plain language" of the provision, and try to convince the court that it need go no further. Policy and "context" arguments are usually reserved for secondary or tertiary arguments, made only after the actual text of the statute is analyzed.
The argument next focuses on the Administrative Rules implementing chapter 343. These are the rules promulaged by the State Office of Environmental Quality detailing how how to apply chapter 343. These rules specify a SEIS must be accomplished where "the intensity of environmental impacts will be increased...or where new circumstances or evidence have brought to light different or likely increased environmental impacts not previously dealt with," a requirement the applicants claim carries the day. Interestingly, the argument relegates to footnote (page 9, note 20), an issue that would seem to be of keen interest to a court trying to craft a review standard where a statute is silent: the applicants assert that a SEIS is triggered when a plaintiff can allege that contextual change "may" result in impacts, not when it can show or allege that those impacts "will occur."
Finally, pointing to federal law by analogy (Hawaii's EIS statute was modeled in part on federal law), the applicants argue the federal EIS statute and its implementing regulations would require an SEIS in these circumstances.
Does the applicants' focus on policy and the administrative rules rather than the statutory text indicate any doubts about what the statutory language requires? Are they conceding by their silence that the statutory language (or lack thereof) cuts against them? Hard to say. Perhaps the applicants were just following the approach of the ICA's dissenting judge, who focused on the administrative rules, or, with only ten pages in which to make their arguments, cut directly to what they perceive as their best arguments. When as counsel you're looking at boiling down an appeal to 10 pages, you have to make cuts somewhere, and perhaps counsel figured the the Supreme Court, not being subject to a page limitation in its opinion, can deal with the plain language and legislative history on its own.
Kuilima Resort Company
The developer filed an opposition outlining its arguments, which begins by addressing directly the applicants' avoidance of the language of chapter 343: "[t]he role of the judicial branch is to interpret law, not to legislate." Relying on the standard canons of statutory construction, it asserts the rule proposed by the applicants asks the court to go too far, and not simply fill in gaps in the statute, but to add language that is not there. The plain language of the administrative rules implementing chapter 343, it argues, shows only a change in the project, and not in the surrounding environment, triggers a SEIS. Interestingly, like the applicants, the developer does not address the language of the statute, but jumps directly to the administrative rules. Again, as above, this may be a function of page limits, and the fact that the ICA majority opinion did not deal with the statutory language in depth, but only with the regulations.
Given the Supreme Court's usual approach to statutory construction, we'd be surprised if it followed the same analysis. More likely, it will begin with what the statute itself requires. The statute doesn't mention supplement EIS's for any reason, as far as we can tell. The ICA dealt with this issue almost offhandedly when it noted:
HRS § 343-5(g) provides that once an EIS has been accepted, no other statement for the proposed action shall be required. Because the rules must be consistent with HRS § 343-5(g), the rules cannot be construed to require an additional SEIS unless there has been a substantive change in the action. Capua v. Weyerhaeuser Co., 117 Hawai‘i 439, 446, 184 P.3d 191, 198 (2008).
Kuilima's brief tracks this analysis, arguing that the language in the regulation can only be read to require a SEIS consistently with the enabling statute by a change in the project, not the environment.
Finally, Kuilima argues that the low threshold that the applicants suggest for the triggering event (new circumstances "may" have significant effects) means that as a practical matter development would be halted, and such an interpretation "would allow every 'NIMBY' to simply allege changed circumstances, with no supporting evidence, and force the DPP, an already cash-strapped agency, to stop its existing review process to investigate every allegation regardless of whether it was substantiated or not." Kuilima Br. at 11.
It asserts the appropriate avenue of relief is for the applicants to get the Legislature to add the language they desire to the statute. This argument attempts to bring the court back to the language-of-the-statute-first argument noted above.
Kuilima also argues that there was nothing in its agreements with the City or its entitlements regarding the timing of its project. It could, it argues, take as long as it wanted, or the timing of the project was, at least, very, very "flexible."
This is not a case where a developer is attempting to evade the environmental review process or where the developer is attempting to build something entirely different from what it was permitted to do. In this case, an EIS was prepared for the Project, the Revised EIS was accepted, the public has had multiple opportunities to participate, environmental concerns have been addressed, and the SEIS Rules have been followed. This is an unfortunate cae where a properly permitted project hit hard economic times, and has taken some time to come to fruition. Fortunately, the Project's entitlements contemplate such circumstances.
Kuilima Br. at 2 (footnote omitted).
City and County of Honolulu
The City's brief takes a more straightforward approach, tracking the Supreme Court's canons of statutory construction. The language of the statute is clear, the City argues, and section 343-5(g) provides that "no other statement for the proposed action shall be required" once an EIS is accepted. The City next argues that the administrative rules are clear, and provide that only a change in the project can trigger a SEIS.
Like Kuilima, the City also asserts that the applicants are asking the court to "legislate from the bench" by recrafting chapter 343 as they wish it was, but isn't. The Legislature is where the remedy lies, not the court.
Amici
Several environmental groups filed an amici brief which focuses on the purposes of chapter 343 (full disclosure, informed decision making), and which argues that the ICA's decision "negates" those purposes. Chapter 343 "contains no express bar against supplementing previous EIS's." Br. at 9. The absence of statutory language makes for a tough argument, since it would seem to raise separation of powers concerns for an executive agency like OEQC to fill in gaps in statutes where the Legislature is silent. It is up to the Legislature to set standards which agencies can fill out by regulation, but it is another thing entirely for an agency to act where the Legislature has not.
Two property owners groups also filed an amicus brief, arguing that chapter 343 does not provide for SEIS's, and that the regulations only provide for them where there has been a change in the project.
Finally, a neighborhood group filed an amicus brief, but since my Damon Key colleague Greg Kugle is the brief's author, it's probably better than you just read it, rather than accept my view of it (It goes almost without saying that Greg is a bright guy and his arguments are always 100% on the mark -- but that's just my opinion).