眾律國際專利商標事務所/眾律國際法律事務所

FACTUAL BACKGROUND

In 2007, Kamehameha Schools developed a North Shore Master Plan to integrate the use of their lands on the North Shore of Oahu, Hawaii. They seek the returns of culture, education, environment, economy, and community of this region (the “Master Plan”).^[1] “Wind energy has shown great promise for economic returns from preliminary studies…The wind technology has a relatively small footprint will likely be compatible with most agricultural uses.”^[2] Under such consideration of “economic returns,” Kamehameha School adopted the Kawailoa Wind project as a part of the Master Plan and provided the lands, which closed to the Waimea Bay--the most famous beach park in North Shore, to Kawailoa Wind.

Kawailoa Wind proposed to build renewable energy (wind power) facilities,^[3] including thirty wind turbines with generating capacity of up to 70 MW per hour and other supporting structures.^[4] In addition, related communication equipment was installed at two existing Hawaiian Telecom facilities on Oahu’s highest mountain--Mt. Ka`ala. Because of this installation, the EIS process was mandatorily triggered. As per Hawaii law.

Although Kawailoa Wind claimed that its goal was to increase the use of clean, renewable energy and reduce the State of Hawaii’s dependence on fossil fuels, a twenty-five (25) years power purchase agreement, ^[5] with stable revenues, was entered into with Hawaii Electric Cooperation (“HECO,”) which constituted a significant incentive to Kawailoa Wind-- for the sake of such substantial economic benefits.

PROCEDRUAL BACKGROUND

The Hawaii EIS process related to the Kawailoa Wind project includes:

•  the trigger of EIS process;
• the scoping;
• the EIS preparation notice (EISPN);
• the draft EIS (DEIS);
• the final EIS (FEIS); and
• the mitigation methodology.

In most cases, a judicial challenge process under HRS § 343-7 would allow the public/environmental/community groups to help the decision makers better consider the new wind farm project more completely, while the Kawailoa Wind did not faced those private challenges. Here is a brief of the mentioned processes.

(1) EIS trigger: because Kawailoa Wind project used a small piece (0.27 Acres) of land o Although the Kawailoa project did not get into the n Mt. Ka’ala owned by the State, the EIS process was triggered under the HRS§ 343-5(a).^[6] However, according to the HRS § 201N-8 (b), the permission for a renewable energy facility shall not be made until after final acceptance of an environmental impact statement, and a draft EIS shall be prepared at the earliest practicable time.^[7] Accordingly, an EIS process shall be required for the new Pupukea Wind project.  

(2) Scoping: Scope is an important step in the EIS process after it is triggered. Scoping is to determine the scope of the EIS, and to determine the significant issues to be discussed in the EIS.^[8] An applicant may segment the proposal into separated pieces thus to evade the possible EIS process and defeat the purpose of EIS review. Therefore, a proposal shall be well scoped to prevent improper segmentation.^[9] In Hawaii, there are four scenarios of actions will be treated as a single action in order to avoid “segmentation”.^[10] Maimea Valley may monitor such scoping-relevant activities noticed by the Office of Environmental Quality Control (OEQC)[11] in order to step in earlier.

(3) EISPN: On September 23, 2010, First Wind LLC prepared an EIS Preparation Notice (EISPN) and submitted tothe Hawaii State Energy Office of Department of Business, Economic Development and Tourism (the “DEBDT”) in accordance with the HRS § 201N-8 (2013) and HRS § 343-5(e), without Environmental Assessment (the “EA,” which is usually the first stage of environmental impact evaluation.)^[12] A thirty-day consultation period expired on October 30, 2010.^[13]

(4) DEIS: On February 23, 2011, First Wind LLC prepared a Draft of EIS (DEIS) and submitted tothe DEBDT. A forty-five day review period under HRS§343-5(e) expired on August 9, 2011. During the thirty-day consultation period under EISPN and the forty-five day review period under the DEIS, Kawailoa Wind communicated with and gave presentations to local community groups such as the North Shore Chamber of Commerce and the North Shore Neighborhood Board.^[14] Kawailoa Wind received twenty seven letters with comments and replied to them.^[15]

(5) FEIS. On July 9, 2011, First Wind LLC prepared and submitted the FEIS to DEBDT. Eleven days later, on July 20, 2011, the DBEPT quickly accepted that FEIS.^[16] A sixty-day period after the acceptance of the FEIS expired without any challenge or request for judicial review^[17] from the public.

(6) Mitigations: Kawailoa Wind presented two major approaches in the FEIS,^[18] inter alia, to mitigate certain unresolved issues, including: to amend the original layout of the construction or to remove certain turbines on the Kawailoa plantation thus minimize the impact on military flight and ground training practices in that area,^[19]and to establish a Habitat Conservation Plan ("HCP")^[20]  for endangered species^[21]  as required by the Hawaii Endangered Species Act.^[22] A separate FEIS for the above mentioned HCP was made and accepted by the authorized agency.^[23]