PART III. THE CHALLENGES ON COMPLIANCE WITH HAWAII EIS PROCESS
Although there was no “judicial proceeding”(HRA §343-7) imposed on the Kawailoa Wind Farm, this project it stillexhibited substantive and procedural deficiencies. Substantively, the Visual Impact (“VI”) was not properly addressed in the DEIS or FEIS report; and public participation was possibly inadequate to meet the EIS’purpose as set forth in HRS §343-1, either. Procedurally, a Cultural Impact Assessment (“CIA”) was not included in the EIS process. We may have a quick look of those deficiencies in this section, then consider certain lessons learned in conclusion.
(1) Visual impacts of the wind turbines.
The local citizengroups, NGOs, and individual residents continually concerned about the visual impacts of the wind turbines caused by Kawailoa project. The criticisms including:
(a) whether the red flashing FederalAviation Administration (FAA) lights mounted on the wind turbines have been discussed;[i]
(b) the DEIS did not adequately address how the facilities will be situated in appropriate locations to minimize their visual impact;
(c) what techniques will be used to blend the facilities and equipment into the natural environment;[ii]and
(d) lack of sufficient simulations at observation points along Kamehameha Highway.[iii]
In certain informal public hearings, a representative of neighborhood (Waimea Valley) expressed his concern that the photo samples attached to the DEIS or FEIS report were taken from a distance, making the windmills appear smaller than real scene. Many residents considered those photos to be misrepresentative of the actual resulting visual impact.[iv] Kawailoa Wind replied, “The approach taken is consistent with design guidelines and best practices that have been developed and implemented for other wind development projects worldwide…there are no additional measures that could reasonably be implemented to further reduce the potential visual impacts; given the large scale of wind turbines, a certain degree of impacts is unavoidable.”[v] Here, the question to such response is: whether the analysis of visual impact on the FEIS adequate to have the agency make a sound decision?
One of the major purpose of HRS § 343 is to establish a system of environmental review which will ensure that environmental concerns are given appropriate consideration in decision making along with economic and technical considerations.[vi] In Hawaii, although the EIS regulation requires the environmental impact statement contains“an explanation of the environmental consequences of the proposed action; fully declare the environmental implications of the proposed action; discuss all relevant and feasible consequences of the action, and include responsible opposing views on significant environmental issues raised by the proposal.”[vii]The HRS §343 and HAR §11-200 does not require a FEIS to provide all possible alternatives or details of mitigations reducing the visual impact. A possible reason is that the VI may be highly relative and subjective, which may be conceived variously--positive or negative--from different people, angle, locations, and distances. Therefore, the HRS § 343 only required the agencies to take a “hard look”at the information and give it serious consideration,[viii]instead of asking a completed mitigation.
In Laguna Greenbelt Inc v. U.S. Dept. of Trans.,[ix](community organization brought action to challenge the decision of Federal Highway Administration (FHA) approving a development in public land), the 9th Circuit Appeal Court ruled that, even though certain information was not disclosed in the FEIS and violated the National Environmental Protection Act (NEPA)’s process, the court will not challenge the agency’s decision in case the decision-maker was fully informed of the environmental consequences. The failure of the EIS to disclose accurately the impacts does not constitute reversible error to the agency’s decision.[x] Meanwhile, the Laguna court ruled that NEPA does not require a fully developed plan that will mitigate all environmental harm; NEPA requires only that mitigation be discussed in sufficient detail to ensure that environmental consequences have been fully evaluated.[xi]
Because the HRS §343 and case law of relevant jurisdiction only required the proposal owner to disclose “consequences”to allow the agencies have a “hard look”, and theEIS report of Kawailoa Wind project had illustrated “existing” conditions and “potential” consequencesof the establishment of wind turbines by photos, one might say the agencies lacked “sufficient” consideration, but not easy to say that the assessment of VI violated the EIS process.
(2) The Public participation would possibly be inadequate
Public participation is required under HRS§343-1, which states in part, “the legislature further finds that the process of reviewing environmental effects is desirable because environmental consciousness is enhanced, cooperation and coordination are encouraged, and public participation during the review process benefits all parties involved and society as a whole.”[xii] The Hawaii courts consistently express that, when citizens’lack of participation has harmed the public interest role that the legislature built into the environmental review process.[xiii]
The problem is that, although HRS §343-2 states that the applicant shall file “documents”for public review, and the “documents” must incorporate the public’s comments under EIS process, there is no legal requirement for mandate public meetings or outreach. If the public hearing, and formal/informal consulting with local groups, residences, and relevant authorities had been conducted, but the local public groups lacked sufficient information or full awareness of the resulting impacts of the Project,[xiv]whether the local community may argue of the EIS process of HRS §343-2 and HAR §11-200-14 had been violated?
This article’s opinion is that the local communities may argue that they cannot prepare comprehensive comments, concreted arguments, or constructive suggestions pertaining to the Kawailoa project if there were no sufficient public dialogs and outreach efforts, because the local communities may not easily access, read, or understand the necessary information from the hundreds pages of DEIS/FEIS. Such constraints should have defeated the purpose of HEPA/NEPA which encourages public participation.[xv]
(3) A detailed Cultural Impact Assessment ( CIA ) may be required:
Waimea Valley is an important place in Hawaiian religion and culture, and includes several historical structures including stone terraces and walls constructed during the time of the Hawaiian monarchy. The Waimea Valley and neighboring land was a place of sacrifice. "It was a visual testimony that this area was sacred and important and more special than the other places".[xvi] Waimea Valley is also the largest ahupua'a (land division running from the mountains to the sea) of Oahu. Burial grounds and shrines are still located in the valley[xvii] to certify the cultural significance of Waimea valley about the ancient Hawaii, and to maintain the indignity of the current and future generation of Hawaiians. The windmills are on the top location of valley-- that may be a desecration to the “sacred”valley.
However, there was no specific cultural impact assessment (CIS) cite to the law made by the FEIS regarding Waimea Valley. In the response to a comment letter made by University of Hawaii, the Kawailoa Wind claimed that a “cultural impact assessment is not currently defined in statute or rule.”[xviii] The Act 50, passed by the House of Representatives in 2000, required state agencies and other developers to access the effects of proposed land use or shoreline developments on the “cultural practices of the community and State”as part of the HRS 343-2,[xix] which requires “cultural practices of the community and the State”to be disclosed in the EIS, and defines such cultural practiceas an element for the agency to consider “Significant effect”.[xx] However, there is no relevant amendment in the Hawaii regulation (HAR Chapter 200) to regulate the CIA as a content of an EIS. Even though such disconnection existed between the State statute and regulation, the Environment Council drafted and adopted “Guidelines for Assessing Cultural Impacts”[xxi] which is a persuasive guide line for the applicant of EIS to prepare CIA.
In the FEIS of Kawailoa Wind project, only a one-page letter inserted into the FEIS addressed some potential tasks and investigations of cultural impact in the future. But such letter included nothing of specific step to consult or to evaluate alternatives and mitigation of cultural impacts. This omission of detailed CIA could constitute non-compliance with the HRS § 343-2 and OEQC recommended process,[xxii] although may not violate the EIS process as defined in the Hawaii EIS regulation (HAR §11-200).
[i] Gregory Erdmann, “Comment letter regarding red flashing lights”, Comments for the EISPN, December 20, 2010.
[ii] David Tanoue, “Comment letter to CH2M Hill Inc.” Department of Planning and Permitting, City and County of Honolulu, Apr 8, 2011. No. 24 of Comments Received on Draft EIS for the Kawailoa Wind Farm Project, Appendix F of the FEIS.
[iv] Interview with Mr. Bill Quinlan, a member of North Shore Neighborhood Board meeting, Nov 16, 2014. He said, the representative of First Wind LLC did not showed the sample photos to the North Shore Neighborhood Board meeting.
[v] “Summary of Potential Impacts and Proposed Mitigation Measures”, Table ES-1 of FEIS, p. ES-7.
[viii] Denies E. Antolini, “The Moon Court’s Environmental Review Jurisprudence: Throwing Open the Courthouse Doors to Beneficial Public Participation”, University of Hawaii Law Review, volume 33 / Number 2 (Summer 2011), p.584. (hereinafter the “Moon Court”)
[ix]Laguna Greenbelt Inc v. U.S. Dept. of Tranp., 42 F 3d 517 (9th Cir. 1994)
[xii] Id. Denies E. Antolini, Moon Court, p.618.
[xiii] Id. Denies E. Antolini, Moon Court, p.588.
[xiv]“Carol Philips, member of the North Shore Neighborhood Board, said …although First Wind and Kamehameha Schools were available at meetings and to answer any questions, many were simply unclear on just how the view plains would be affected. Nobody got it, until they went up, and then everyone was blown away." See. Lauren Shanahan, “From Sacred to Savior?” ESPN news, Dec 12, 2012, http://xgames.espn.go.com/surfing/article/8739422/wind-power-comes-waimea-bay
[xix] Della Au Belatti “Act 50: the protections, pitfalls, and possibilities of the new cultural assessment requirement for Hawaii diverse communities”, Hawaii Environmental Law Program Paper Series, Spring 2004, p3.
[xx] HRS §343-2, definition of “Environmental impact statement” and “Significant effect”.
[xxi] Exhibit 1-1 “Guidelines for Assessing Cultural Impacts”, OEQC Guide.
[xxii] See. Guide to the Implementation and Practice of Hawaii Environmental Policy Act, 2012 Edition, Office of Environmental Quality Control, p.11-13.