Report Title:

Environmental Protection; Categorical Exemptions; Tort Liability

 

Description:

Establishes statutory categorical exemptions from chapter 343, Hawaii Revised Statutes.  Requires agencies and applicants for a proposed action to apply to the director of the office of environmental quality control for a categorical exemption.  Provides that approval of the application for a categorical exemption requires the director's discretionary consent.  Repeals office of environmental quality control's authority to establish categorical exemptions pursuant to administrative rulemaking.  Clarifies that the director's approval of a categorical exemption be construed as prima facie evidence of due care in the execution of a statute or rule under the State Tort Liability Act.

 


HOUSE OF REPRESENTATIVES

H.B. NO.

2296

TWENTY-FOURTH LEGISLATURE, 2008

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT


 

 

RELATING TO ENVIRONMENTAL PROTECTION.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


     SECTION 1.  (a)  The legislature finds that the quality of the natural environment is critical to humanity's well-being, that humanity's activities have broad and profound effects upon the interrelations of all components of the environment, and that an environmental review process integrates the review of environmental concerns with existing planning processes of the State and counties and alerts decision makers to significant environmental effects that may result from the implementation of certain actions.  At times, however, the review process may not achieve the intended effect, and the environment may be threatened, existing planning processes may stop, and the people's interests may not be served.

     The legislature further finds that chapter 343, Hawaii Revised Statutes, (relating to environmental impact statements), was enacted in 1974 to establish a system of environmental review to ensure that environmental concerns are given appropriate consideration in decision making, along with economic and technical considerations.  This law was patterned after the National Environmental Policy Act of 1969, 42 United States Code section 4321-4370(f). 

     Specifically, chapter 343, Hawaii Revised Statutes, requires that environmental assessments and environmental impact statements be prepared for development projects that meet certain criteria.  The basic framework of chapter 343 consists of various stages of assessments by the proposing or accepting agency, each of which may entail additional review procedures.

     First, it must be determined whether a project or program is subject to the environmental review process.  A project is subject to the law if it is either initiated by a government agency or by a private party that requires government approval for the project to proceed and the project proposes one or more of nine enumerated land uses or administrative acts, known as "triggers".  If a triggering event occurs, an environmental assessment must be prepared unless the program or project is declared exempt.

     Exemption determinations are governed by section 343-6(7), Hawaii Revised Statutes, which delegates to the environmental council the responsibility to "adopt, amend, or repeal" rules that "establish procedures whereby specific types of actions, because they will probably have minimal or no significant effects on the environment, are declared exempt from the preparation of an assessment".  Section 11-230(8), Hawaii Administrative Rules (Department of Health), provides for ten classes of exempt action.

     Section 11-230(8), Hawaii Administrative Rules (Department of Health), allows an agency to declare an action exempt from the preparation of an environmental assessment provided that the agency obtains the advice of "other outside agencies or individuals having jurisdiction or expertise as to the propriety of the exemption".  This section further states that the exemption classes do not apply when "the cumulative impact of planned successive actions in the same place, over time, is significant, or when an action that is normally insignificant in its impact on the environment may be significant in a particularly sensitive environment".

     When no exemption applies and one of the triggers of section 343-5(a), Hawaii Revised Statutes, is met, environmental review begins with the development of a draft environmental assessment.

     (b)  In 2004, the department of transportation consulted with the office of environmental quality control regarding the appropriateness of an exemption from the environmental review process for proposed improvements at Kahului harbor.  Specifically, the department of transportation transmitted a letter to the office of environmental quality control requesting confirmation that the project's intended improvements fell within the approved exemption classes established for the department of transportation.  Identical letters were also sent to the department of public works and waste management for the county of Maui and the department of planning for the county of Maui.

     In a reply letter dated November 23, 2004, the office of environmental quality control director wrote that that "OEQC believes that the proposed improvements fall within the scope of work described in the department of transportation's approved exemption list".  On February 23, 2005, the department of transportation expressed its determination that the project "meets conditions that permit exemption from environmental review at such location based on the method of operation planned. . ." and authorized the project to proceed without the preparation of an environmental assessment.

     On March 21, 2005, the Sierra Club, Maui Tomorrow, Inc., and the Kahului Harbor Coalition filed suit before the circuit court of the second circuit challenging the exemption determinations made by the department of transportation.  On May 12, 2005, the department of transportation filed a motion to dismiss the case on the bases that the Sierra Club, Maui Tomorrow, Inc., and the Kahului Harbor Coalition lacked standing and that the State was entitled to dismissal or summary judgment on the merits because the department of transportation's determination was correct and should be accorded deference.  On July 12, 2005, the circuit court issued an order granting the department of transportation's motion, which was appealed by the Sierra Club, Maui Tomorrow, Inc., and the Kahului Harbor Coalition to the Hawaii supreme court.

     In Sierra Club, et al. v. the Department of Transportation, 115 Haw. 299 (2007), the Hawaii supreme court vacated the July 12, 2005, circuit court judgment, holding that the department of transportation's determination that the improvements to the Kahului harbor were exempt from the requirements of chapter 343 was erroneous as a matter of law.

     The supreme court noted that "an agency making an exemption determination must look beyond an action's facial compliance with an exemption class, and also determine that the activity will probably not have a significant effect".  Sierra Club, 115 Haw. at 340 (citing McGlone v. Inaba, 64 Haw. 27 (1981)).  Furthermore, the court determined that "the agency must consider not just the effect of an action on the direct site to which the exemption applies (the "primary impact"), but also secondary impacts that are 'incident to and a consequence of the primary impact'".  Id. (quoting McGlone, 64 Haw. at 38 n. 15).  The court concluded that the "exemption was erroneously granted" because the department of transportation "considered only the physical improvements to Kahului harbor in isolation" and failed to take into account "the secondary impacts on the environment that may result from the use of the Hawaii Superferry in conjunction with harbor improvements".  Sierra Club, 115 Haw. 15 343.

     (c)  The legislature finds that the Sierra Club decision clearly shows that the state administration failed to enforce the letter and spirit of chapter 343, Hawaii Revised Statutes.  As such, questions have been raised as to whether potential future litigation may hold the State liable for damages resulting from the department of transportation's failure to enforce chapter 343.  Numerous inquiries by the legislature were made as to whether the department of transportation consulted with the attorney general for legal analysis prior to the issuance of the exemption determination.  These inquiries were declined by both the department of transportation and the attorney general who cited attorney-client privilege.

     Section 662-2, Hawaii Revised Statutes, provides that the State "waives its immunity for liability for the torts of its employees and shall be liable in the same manner and to the same extent as a private individual under like circumstances . . .".  However, section 662-15, provides in pertinent part:

This chapter shall not apply to . . . any claim based upon an act or omission of an employee of the State, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation is valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee, whether or not the discretion involved has been abused; . . . (See section 662-15(1), Hawaii Revised Statutes).

     (d)  The legislature finds that:

     (1)  The current procedures used to exempt projects from chapter 343, Hawaii Revised Statutes, place too much discretionary authority with the agency seeking the exemption;

     (2)  As a matter of law, the State is required to analyze an activity's potential connected actions, secondary impacts, significant effects, and cumulative impacts before the activity may be exempted from chapter 343;

     (3)  The State's failure to analyze an activity's potential connected actions, secondary impacts, significant effects, and cumulative impacts before approving an exemption from chapter 343 could be deemed as failure by the State to exercise due care in the execution of a statute or rule; and

     (4)  Failure to exercise due care in the execution of a statute or rule may preclude the State from claiming an exception from tort liability.

     (e)  The purpose of this Act is to clarify chapter 343, Hawaii Revised Statutes, in light of the ruling in Sierra Club, by:

     (1)  Establishing statutory categorical exemptions from chapter 343;

     (2)  Requiring agencies and applicants for a proposed action to apply to the director of the office of environmental quality control for a categorical exemption;

     (3)  Providing that approval of the application for a categorical exemption requires the director's discretionary consent;

     (4)  Repealing the office of environmental quality control's authority to establish categorical exemptions pursuant to administrative rulemaking; and

     (5)  Clarifying that the director's approval of a categorical exemption be construed as prima facie evidence of due care in the execution of a statute or rule under chapter 662, Hawaii Revised Statutes.

     SECTION 2.  Chapter 343, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

     "§343-    Exemptions.  (a)  The director may declare a proposed action exempt from the preparation of an environmental assessment if the proposed action proposes:

     (1)  Operations, repairs, or maintenance of existing structures, facilities, equipment, or topographical features, involving negligible or no expansion or change of use beyond that previously existing;

     (2)  Replacement or reconstruction of existing structures and facilities where the new structure will be located generally on the same site and will have substantially the same purpose, capacity, density, height, and dimensions as the structure replaced;

     (3)  Construction and location of single, new, small facilities or structures and the alteration and modification of the facilities or structures, including but not limited to:

         (A)  Single-family residences less than two thousand five hundred square feet not in conjunction with the building of two or more such units;

         (B)  Multi-unit structures designated for not more than four dwelling units if not in conjunction with the building of two or more such structures;

         (C)  Stores, offices, and restaurants designated for total occupant load of twenty persons or less per structure, if not in conjunction with the building of two or more such structures;

         (D)  Water, sewage, electrical, gas, telephone, and other essential public utility services extensions to serve such structures or facilities, accessory or appurtenant structures including garages, carports, patios, swimming pools, and fences, and acquisition of utility easements;

     (4)  Minor alterations in the conditions of land, water, or vegetation;

     (5)  Basic data collection, research, experimental management, and resource evaluation activities that do not result in a serious or major disturbance to an environmental resource;

     (6)  Construction or placement of minor structures accessory to existing facilities;

     (7)  Interior alterations involving things such as partitions, plumbing, and electrical conveyances;

     (8)  Demolition of structures, except those structures located on any historic site as designated in the national register or Hawaii register, as provided for in the National Historic Preservation Act of 1966, Public Law 89-665, 16 United States Code section 470, as amended, or chapter 6E;

     (9)  Zoning variances except shoreline setback variances; and

    (10)  Continuing administrative activities, including but not limited to purchase of supplies and personnel-related actions.

     (b)  An agency or applicant proposing an action may apply to the director for an exemption from this chapter if the proposed action proposes any of the activities listed in subsection (a).  The application shall be on forms prescribed by the director by rule adopted pursuant to this section and chapter 91, which shall include, at a minimum, the following:

     (1)  A description of the proposed action;

     (2)  The exemption classification, as listed in subsection (a), under which the agency or applicant seeks the exemption;

     (3)  An analysis of the proposed action's potential connected actions, secondary impacts, significant effects, and cumulative effects; and

     (4)  The parties consulted during the agency's or applicant's preliminary review of the environmental effects of the proposed action.

     (c)  The director shall review the application and determine whether the proposed action probably will have minimal or no significant effect on the environment.  Upon a determination that the proposed action will probably have minimal or no significant effect on the environment, the director shall approve the application.  If the director is unable to make this determination, the director shall deny the application.  The director shall not approve an exemption to a planned action for which the cumulative impact of planned successive actions in the same place, over time, is significant or when an action that is normally insignificant in its impact on the environment may be significant in a particularly sensitive environment.  The director's determination approving or denying an application shall be in writing.

     (d)  The director's approval of a categorical exemption shall be construed as prima facie evidence of due care in the execution of a statute or rule under section 662-15.

     (e)  In the event the governor declares a state of emergency, the governor may exempt any affected program or action from complying with this chapter.

     (f)  The application for categorical exemption and the director's written response approving or denying the application shall be made available to the public in accordance with section 343-3.  Each agency shall maintain records of all applications for categorical exemptions submitted to the director and all written responses received from the director approving or denying an application and shall produce the records for review upon request."

     SECTION 3.  Section 343-2, Hawaii Revised Statutes, is amended as follows:

     1.  By adding eight new definitions to be appropriately inserted and to read:

     ""Cumulative impact" or "cumulative effect" means the impact on the environment that results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency or person undertakes such other actions.  Cumulative impacts include results from individually minor but collectively significant actions taking place over a period of time.

     "Director" means the director of the office of environmental quality control.

     "Effects" or "impacts" as used in this chapter have the same meaning and include ecological effects (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic effects, historic effects, cultural effects, economic effects, social effects, or health effects, whether primary, secondary, or cumulative.  Effects may also include those effects resulting from actions that may have both beneficial and detrimental effects, even if on balance the agency believes that the effect will be beneficial.

     "Environment" means humanity's surroundings, inclusive of all the physical, economic, cultural, and social conditions that exist within the area affected by an action, including land, human and animal communities, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance.

     "Environmental impact" means an effect of any kind, whether immediate or delayed, on any component of the environment.

     "Ministerial consent" means consent, sanction, or recommendation from an agency upon a given set of facts, as prescribed by law or rule without the use of judgment or discretion.

     "Primary impact" or "primary effect" means effects that are caused by the action and occur at the same time and place.

     "Secondary impact" or "secondary effect" means effects that are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable."

     2.  By amending the definition of "significant effect" to read:

     ""Significant effect" or "significant impact" means the sum of effects on the quality of the environment, including actions that irrevocably commit a natural resource, curtail the range of beneficial uses of the environment, are contrary to the State's environmental policies or long-term environmental goals as established by law, or adversely affect the economic welfare, social welfare, or cultural practices of the community and State."

     SECTION 4.  Section 343-6, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  After consultation with the affected agencies, the council shall adopt, amend, or repeal necessary rules for the purposes of this chapter in accordance with chapter 91 including, but not limited to, rules which shall:

     (1)  Prescribe the contents of an environmental impact statement;

     (2)  Prescribe the procedures whereby a group of proposed actions may be treated by a single statement;

     (3)  Prescribe procedures for the preparation and contents of an environmental assessment;

     (4)  Prescribe procedures for the submission, distribution, review, acceptance or nonacceptance, and withdrawal of a statement;

     (5)  Prescribe procedures to appeal the nonacceptance of a statement to the environmental council;

     (6)  Establish criteria to determine whether a statement is acceptable or not;

    [(7)  Establish procedures whereby specific types of actions, because they will probably have minimal or no significant effects on the environment, are declared exempt from the preparation of an assessment;

     (8)] (7)  Prescribe procedures for informing the public of determinations that a statement is either required or not required, for informing the public of the availability of draft statements for review and comments, and for informing the public of the acceptance or nonacceptance of the final statement; and

    [(9)] (8)  Prescribe the contents of an environmental assessment."

     SECTION 5.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

     SECTION 6.  If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

     SECTION 7.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 8.  This Act shall take effect upon approval.

 

INTRODUCED BY:

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