One of the most important laws on the books is Hawai‘i Revised Statutes (HRS) 343 also known as the Hawai‘i Environmental Protection Act (HEPA). Included in my now 70 years of life experience was a stint in 2012 as Director of the Office of Environmental Quality Control (OEQC), the agency responsible for administering this law.
In short, HRS343 requires under certain circumstances a thorough environmental review of a proposed project or “action” prior to its start. The highest level of review would be a requirement that the agency and/or developer prepare and have approved/accepted an Environmental Impact Statement (EIS).
During my term as OEQC Director, our office literally “wrote the book” — “Guide To Implementation And Practice Of The Hawai‘i Environmental Protection Act.”
So yes, I’m somewhat familiar with Chapter 343.
On April 30, 2024, the Intermediate Court of Appeals (ICA) overruled a 5th Circuit Court decision which previously concluded the State of Hawai‘i and Syngenta were exempt from conducting a Chapter 343 environmental review of pesticide intensive seed corn research being conducted on state-owned lands.
The ICA decision basically means the state of Hawai‘i was wrong in allowing an exemption and therefore a review of potential environmental impacts must be conducted.
It’s a huge win for health and the environment, shepherded through the complex legal process by attorneys Lance Collins and Bianca Isaki on behalf of a hui of Kaua‘i community groupsm including HAPA, Surfrider Foundation, Ke Kauhulu O Mana, Kohola Leo, and Native Hawaiian cultural practitioners, including Punohu Kekaualua.
An Environmental Assessment (EA) is the appropriate next step. EA’s are meant to review and disclose environmental and health impacts likely to occur on the lands being reviewed. Should that review indicate potentially significant impacts, a full EIS would then be required.
This is the same information sought by the infamous 2013 Kaua‘i County Bill 2491 which essentially said, “Disclose the chemicals and pesticides you’re using so the impact on public health and environment can properly be determined.”
Speaking of disclosure, the author of this column Policy and Politics was a Kaua‘i Council member, co-author of Bill 2491 and now president of HAPA.
In 2014 the courts ruled Bill 2491 invalid because state law preempts county law.
Fast forward 10 years and voila! HRS 343 is a State law and to comply requires disclosure AND a thorough evaluation of health and environmental impacts.
While Syngenta contracted its operations to Hartung Brothers in 2017, requirements of the law remain the same.
Hartung utilizes the same pesticides, also conducts research and development, and is located on the same sensitive state coastal lands.
For the moment, “next steps” remain in the attorneys hands.
To better understand the beauty and power of Chapter 343, read on.
“All exemptions … are inapplicable when the cumulative impact of planned successive actions in the same place, over time, is significant, or when an action normally insignificant in its impact on the environment may be significant in a particularly sensitive environment.” Section 11-200-8(b)
“The agency must consider the sum of the effects on the quality of the environment…the expected direct and indirect consequences, the cumulative, short-term and long-term effects of the proposed action.” HEPA Guidebook
Some noteworthy court decisions:
2009 Unite Here! Local 5 v. City and County of Honolulu and Kuilima Resort — The Turtle Bay expansion project must do a supplemental EIS; it could not rely on a 20 year old EIS.
2008 ‘Ohana Pale Ke Ao v. Board of Agriculture — HEPA required the preparation of an EA for importing and growing genetically engineered algae because it involves a use of State land and was not within the scope of prior NELHA EIS’s.
2007 Sierra Club v. Department of Transportation — (Superferry 1) DOT erred in finding exempt Superferry dock improvements without considering whether environmental impacts of the whole Superferry operation, secondary, as well as primary, would be significant.
