Conservationists hailed a Hawaii Supreme Court ruling in early April as a victory in their fight against Turtle Bay resort on Oahu’s North Shore. But it could also have a wide-ranging impact on other developments throughout Hawaii.
Just how far-reaching the effects could be is unclear, as no government agency tracks what happens to projects after they’ve been reviewed. Uncertainty itself could be the biggest impact, at least in the short-term.
The April 8 decision forced Turtle Bay developer Kuilima Resort Company to update its environmental review, and established a precedent: Environmental Impact Statements don’t last forever. Landowners can be required to get new approvals if the surrounding area has changed, even if the design of the proposed project itself has not.
The ruling reinforced the idea that environmental impact statements must be an accurate measure of current conditions, not a historical document cast in stone.
Rather than setting a strict expiration date on all environmental reviews, the court ruled that the “substantive change” in the Turtle Bay project’s timeframe made the development an “essentially different action,” invalidating the original approval.
“Right now our members are taking a look at their various projects, and it’s just something that’s really hard to deal with,” said David Arakawa, executive director of Land Use Research Foundation, a pro-development advocacy group. “We’re trying to grapple, and maybe we’re searching through the forest and don’t see the trees, and don’t see the big picture.”
Opponents of the Turtle Bay expansion argued that North Shore traffic patterns have changed while endangered species, such as monk seals and green sea turtles, have emerged in the area in the 25 years since the original EIS was approved in 1985.
The court agreed, and overruled lower court decisions that had given Kuilima the green light. While it repeatedly mentioned the long delays in completing the project, the ruling also made plain that it doesn’t mean all developers will be required to file new papers “every time new information comes to light.”
“[T]he conclusion that a SEIS (supplemental EIS) is warranted is based on the particular circumstances in this case,” the ruling states, emphasizing the last three words. That sentence, and that underline, could undermine attempts to glean a clear precedent from the case, and could open the door for confusion and speculation.
The decision and the confusion now surrounding it could throw more cold water on what is already a chilly financial climate. Entitlements are touted by developers, and projects with completed EISs are more attractive to potential investors than those without.
In a brief filed in December 2009 in support of the developer, First Hawaiian Bank attorneys warned that overturning the earlier decisions would “create a cloud of uncertainty over every construction project in Hawaii because of the potential for unforeseen delays in the project.” The bank said the “heaviest impact would undoubtedly be felt by Hawaii’s construction industry; an industry that is a cornerstone of Hawaii’s economy.”
Arakawa said the ruling could affect not only large developers but also small landowners. He pointed to the Supreme Court’s March 2009 ruling against Hawaii Superferry, which made applicants seeking driveway expansions or new cable lines near public right-of-ways face potentially expensive environmental assessments.
California-based attorney Rory Wicks, who represented appellants including preservation group Keep the North Shore Country before the Supreme Court, disagreed. Wicks said the ruling would not impact “mom-and-pop subdivisions” and that it will give the public a “second bite out of the apple” to testify in opposition to large-scale projects that may have been what the community wanted decades ago but no longer fit.
“The Supreme Court decision does have tremendous statewide impacts,” Wicks said in a phone interview. Government agencies are “going to have to take a hard look to see if the circumstances surrounding a project have so changed in the last 25 to 30 years to require a supplemental environmental review. That’s the significance of the opinion.”
Wicks said five or six dormant projects could feel the most direct impacts. He declined to name them when asked.
“If they want to bring them back awake, they’re going to have to do some work, they’re going to have to spend some money,” he said. While the projects may eventually proceed, “at least there will be a process in which the community can again participate.”
“The effect will be on a small number of projects, but the effect could be huge for public participation — people having a say in what can take place and what can be developed in their counties,” Wicks said. “It’s a different community than it was in the 1970s and 1980s.”
The large-scale projects directly impacted by the ruling aren’t immediately obvious, because the oldest outstanding EISs are not necessarily the ones that have had environmental shifts in the surrounding areas.
Arakawa identified master development plans in Mililani and Kapolei as those that have been many years in the making, and said the Honolulu rail proposal and a Central Oahu sewer project could take decades.
The state Office of Environmental Quality Control is the EIS clearinghouse, with more than 4,000 on file. But OEQC was unable to identify which projects are outstanding. A representative said the agency was not concerned with what happens after the EIS is completed and on the books.
The City of Honolulu’s Department of Planning and Permitting, which OK’d the Turtle Bay EIS and was dragged into the lawsuit, does not keep a database for the documents it approves either. The department was unable to identify which projects with EISs have received building permits.