The Abercrombie administration has admitted that it could have handled a controversial emergency proclamation better.
But on Monday it issued a lengthy FAQ defending its June decision to clear the way for a clean up of unexploded munitions on state land and rejected a demand from environmental and cultural groups that it rescind its order.
The Sierra Club and seven other groups called on the governor to withdraw his emergency proclamation that exempts the U.S. Army Corp of Engineers from 23 state laws while it conducts the ordnance removal.
Asked for a response, the governor’s spokeswoman, Donalyn Dela Cruz, said, “To ensure the health and safety of the public, the Governor will not rescind the emergency proclamation.”
The FAQ is just the second issued by the administration. The first came to explain its controversial decision to impose a new contract on Hawaii teachers.
Told of the administration’s response, the Sierra Club’s director, Robert Harris, told Civil Beat, “I believe the governor is overstepping his authority, and that our decades-old environmental laws have mechanisms to allow for prompt action, which could be used if necessary. In addition, we are concerned about the lack of community engagement and transparency in this process.”
Public Safety Cited
The administration has been criticized for failing to notify the public and lawmakers of the emergency proclamation, which was issued June 14. It has since admitted that it was an oversight.
But, officials have stood by their view that the proclamation was necessary for public safety reasons. The lands in question include public beach areas that may contain “munitions, explosives or other hazardous materials,” according to the proclamation.
In the FAQ, the administration states, “The only option after careful consideration by the Attorney’s General Office and the Department of Land and Natural Resource was to use an emergency proclamation.”
Those arguments are expanded on in the FAQ.
“Munitions — ranging from grenades, mortar rounds to missiles and more – have been found on or within range of residential areas, schools, colleges, public beaches, parks, shopping areas, and industrial areas,” the FAQ states. “Public safety and security are paramount. When an explosive is found on public land, we have an emergency situation that needs to be defused as soon as possible.”
Federal Law Still Applies
Under a federal program, the U.S. Army Corps of Engineers seeks to clear munitions and explosives from 128,790 acres in Hawaii, which includes 37,000 acres of state lands. The cost to the federal government is expected to exceed $100 million.
The administration says the program has already shown promise:
A recent example of the effectiveness of the state’s action occurred at Hapuna Beach State Recreation Area. On Sept. 6, 2011, the Army Corps of Engineers began a sweep at Hapuna Beach and found a hand grenade and high explosive mortar. These munitions were safely destroyed in place. Without the emergency proclamation, it is likely that the grenade would still be on the beach today.
In issuing the emergency action, the administration says it could not give the Army Corps of Engineers “a blanket exemption” for disposing munitions:
A blanket exemption was not available in this particular case. Under state environmental laws, the Army Corps would have to stop its work to conduct an environmental assessment after locating munitions. This process could take months. The Army Corps must still follow federal environmental laws that also include consideration of cultural resources.
The administration also expressed awareness that the public should been notified of such actions: “This was an uncommon but necessary use of the Governor’s emergency powers. Nevertheless, it is important that the public be informed in a timely manner. In the future, the Governor’s Office will issue public releases of all emergency proclamations.”
Opposition to the Proclamation
The groups opposing the governor issued their own statement and legal analysis Monday.
“While Governor Abercrombie’s administration may have been well-intentioned, it was ill-advised to suspend statutes that directly protect the public from harm,” the Sierra’s Club’s Harris said in a press release. “Waiver of Hawaii’s legal protections — whether they be procurement, cultural, environmental, or other — undermines public goals of transparency, accountability, and community invovelment. It also puts the public at risk of harm. Laws governing clean water, clean air, and hazardous materials all exist for a reason.”
The rationale used by the Abercrombie administration to evade State regulations — the threat of speculative harm to the public — could wrongly justify numerous projects. At its core, virtually every governmental action is designed to protect the public. The scope of the Governor’s emergency powers is not so broad, however. The Governor cannot pick and choose what actions will comply with the law.”
The other seven groups are the Conservation Council for Hawaii, Friends of Lanai, Hawaii’s Thousand Friends, KAHEA: The Hawaiian-Environmental Alliance, Life of the Land, Malama Kauai and Na Kupuna Moku O Keawe.
The groups pointed to a recent Civil Beat article about endangered nene on Kauai. They first criticized the governor’s decision to declare an emergency to allow the birds to be shipped to the Big Island and Maui to prevent the birds from being struck by aircraft.
Then they took on the June 14 munitions decision, saying his administration was misconstruing the law. The letter to the governor states that emergency declarations can only come during a “civil defense emergency period,” when:
“an attack upon the State has occurred or that there is danger or threat thereof, or that there has arisen any state of affairs or circumstances of such a grave nature as to affect the common defense or the readiness of the community to meet an attack, and which requires the invocation of provisions of this chapter that are effective only during a period of civil defense emergency.”
The letter states: “Plainly, here, (1) Hawaii is not under attack, (2)Hawaii is not impaired from attack-readiness because of Nene geese or decades-old unexploded munitions, and (3) the President did not declare a civil defense emergency period.”
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