WASHINGTON — When David Henkin discusses the importance of the National Environmental Policy Act he often brings up Hawaii’s greatest menace — the Indian mongoose.

The mongoose was introduced to the islands in 1883 by the sugar industry as a means to control a burgeoning rat population.

Instead, the mongoose devoured the eggs of native bird species, including several that now teeter on the brink of extinction, such as the Hawaiian crow, or alala, and the Hawaiian petrel, which is also known as the uau.

The mongoose is an invasive species that has decimated Hawaii’s native bird populations. Hawaii DLNR

“I’m sure that whoever made that decision to introduce the mongoose in Hawaii to control rats on the plantation was well-intentioned, but they were ill-informed,” Henkin said.

“There was no NEPA process back then, but if there was and they put the proposal out for public comment someone might have said, ‘Hey, the mongoose is diurnal and the rats are nocturnal so this might be a problem.’”

Henkin is a Honolulu-based attorney for Earthjustice, a national nonprofit law firm that takes on cases to protect wildlife, preserve open spaces and combat climate change.

He’s involved in a number of lawsuits related to the National Environmental Policy Act, or NEPA, including one he argued just this week before the U.S. Court of Appeals for the 9th Circuit that involves the military’s desire to conduct live-fire war games in the Northern Mariana Islands. Henkin is convinced it will decimate native forests, farmlands and coral reefs as well as the local communities.

The Trump administration is in the process of weakening NEPA, a law that activists, scholars and government officials liken to the Magna Carta of environmental regulation.

Some of Hawaii’s most high stakes and controversial projects have been subject to strict environmental review under the federal statute, sometimes causing costly delays, other times highlighting serious dangers to the archipelago’s unique, and oftentimes fragile ecosystem, not to mention its indigenous heritage.

Trump wants to change all that by making it easier for certain projects to skip out on addressing certain issues, such as climate change. Others would be allowed to avoid scrutiny all together.

For Henkin, that means fewer opportunities for citizens to weigh in on the projects affecting their lives and their communities.

“Any assault on NEPA is an assault on the public’s interest,” Henkin said. “It’s premised on making sure that federal agencies don’t make decisions behind closed doors. It’s a really effective tool that, if the Trump administration screws with it, we’ll go back to plunging everything back into darkness, which is where this administration likes to dwell.”

President Donald Trump announced his administration’s proposed changes to NEPA last month during a ceremony at the White House.

David Henkin has been involved in several lawsuits involving NEPA over the years. Nick Grube/Civil Beat

Specifically, the Trump administration wants to reduce the number of projects that are subject to NEPA review and limit the time federal agencies spend studying how a new road, pipeline or power plant might affect a neighboring community and the surrounding environment.

The proposed rule change also asks federal authorities to avoid serious questions about so called cumulative impacts, which could include a project’s expected contribution to climate change.

When Trump announced the new rules he was surrounded by cabinet secretaries, industry leaders and men wearing orange work vests and hardhats.

The proposed rollbacks were applauded by various organizations representing fossil fuel interests, such as the American Petroleum Institute and American Energy Alliance.

“In the past, many of America’s most critical infrastructure projects have been tied up and bogged down by an outrageously slow and burdensome federal approval process,” Trump said during his Jan. 9 address.

“These endless delays waste money, keep projects from breaking ground, and deny jobs to our nation’s incredible workers. From day one, my administration has made fixing this regulatory nightmare a top priority. And we want to build new roads, bridges, tunnels, highways bigger, better, faster, and we want to build them at less cost.”

Rail, H-3 And A $1.9 Billion Radar

The National Environmental Policy Act, which was signed into law by Republican President Richard Nixon in 1970, has a storied history in Hawaii.

The first project that was subject to the NEPA process was the H-3 Interstate, an elevated freeway carved through the center of the Koolau mountains.

When the project was pitched in the 1960s, the U.S. was in the midst of the Cold War, and military officials wanted a road to quickly transport troops between the Marine Corps base in Kaneohe and Pearl Harbor/Hickam in Honolulu.

Local residents had different concerns. By the 1970s the environmental movement was in full swing and a Native Hawaiian cultural resurgence was underway.

H3 Freeway on the Kaneohe Side of the Koolau Mountains.
The H-3 Interstate was the first project in Hawaii to be subject to the National Environmental Policy Act. Cory Lum/Civil Beat

Numerous studies were conducted over the course of 20 years, and the highway was rerouted several times to avoid sensitive habitats and Native Hawaiian cultural sites, such as burial grounds and the remains of terraced fields that once grew taro.

Eventually, U.S. Sen. Dan Inouye stepped in and convinced Congress to pass a bill to exempt the project from further environmental review.

By the time H-3 opened in December 1997, it was 25 years behind schedule and its $1.3 billion price tag was more than five times the original estimate of $250 million.

Honolulu’s $9 billion rail project is another example of a local transportation project forced to comply with NEPA.

Like H-3, the review process allowed for rigorous scrutiny of the largest public works project in Hawaii history.

It also opened the door for legal challenges, both at the state and federal level, that temporarily halted construction and forced officials to account for Native Hawaiian burials.

Year after year, the federal government, through NEPA, has been forced to modify its actions or change course to quell public concerns.

In 2009, a group of citizens forced the Nuclear Regulatory Commission to reconsider its decision to approve a Hawaii company’s plans to build a fruit irradiator near the Honolulu airport.

The concern at the time was that the facility, which used dangerous radioactive materials to kill fruit flies, was located near a highly populated area that was prone to plane crashes and natural disasters, such as earthquakes and tsunamis.

After following the NEPA process, which involved studying alternative locations, the company was approved to build its irradiator in Kunia, far from Oahu’s population centers.

When the U.S. Army decided to bring a Stryker brigade to Oahu in 2005, there was little analysis about whether Hawaii was the right place to station 300 heavily armored vehicles, each one weighing nearly 20 tons.

Critics worried that the vehicles, which needed to be shipped back and forth from Oahu to the Big Island for training, would ruin cultural sites, destroy native forests and kill endangered species. They also asked, “Why Hawaii?”

The courts forced the Army to study new sites that would be less damaging to the environment, but the military decided to stick with its initial choice even though other locations seemed more suitable.

Inouye was a big reason. He was one of the country’s most influential politicians and he lobbied vigorously to bring the Strykers to the islands.

It was only after he died in 2012 that the Army decided to move the vehicles to Washington state as part of a larger effort to downsize and reorganize.

SCHOFIELD BARRACKS, Hawaii- U.S. Army Soldiers from the 71st Chemical Company, 303rd Ordnance Battalion (EOD), 8th Military Police Brigade, 8th Theater Sustainment Command, navigate a Nuclear, Biological, Chemical Reconnaissance Vehicle during the company’s weeklong Stryker Gunnery training held Oct. 10-14, here.
A Stryker brigade used to be located on Oahu until the Army was forced under federal environmental law to consider better locations. DVIDS: Staff Sgt. Taresha Hill/2019

Denise Antolini, who’s a professor at the University of Hawaii William S. Richardson School of Law, said these cases exemplify why NEPA is so important, especially in a state like Hawaii where the federal footprint is so large.

“In short, it forces decision makers to stop and think,” she said.

Take, for instance, the Homeland Defense Radar, a $1.9 billion project that officials say will help protect the islands from a future ballistic missile threat.

The radar is in the beginning stages of the NEPA process, which includes public discussions of where it will be located. Already activists are preparing to protest.

At least two sites are being considered on Oahu, including the U.S. Army’s Kahuku Training Area, and on Kuaokala Ridge at Kaena Point. The Missile Defense Agency is reportedly considering the Pacific Missile Range Facility on Kauai as a third alternative.

Antonlini calls the Trump administration’s proposals “a disaster for Hawaii.”

Not only will there be fewer opportunities for the public to weigh in on federal projects, she said, the failure to address the long-term effects of climate change will only hurt the people living there.

Moderator Hawaii Energy Forum keynote panel members left, Denise Antolini and right, Leo Asuncion at the Capitol.
University of Hawaii law professor Denise Antolini says NEPA gives local communities a voice in decisions made by the federal government. Cory Lum/Civil Beat/2018

“Understanding and planning for the risks of the climate crisis, which is linked to the biodiversity crisis, is essential to our islands,” Antolini said.

“The wide range of effects from the climate crisis, from sea level rise to saltwater intrusion on our aquifers, to rain bombs to eroded highways, to hot weather spells that change our agricultural cycles, all of these things have a disproportionate impact on Hawaii because we’re so isolated and we have such a deeply interconnected social and natural and cultural community.”

She added that while Hawaii is one of 20 states that has its own version of NEPA, the state law won’t always act as a backstop should Trump’s rollbacks get approved.

Federal projects taking place on federal lands, such as a base controlled by the U.S. military, might not be subject to as much public scrutiny.

Parts Of The Proposal Are ‘Downright Troubling’

Not everything about the Trump proposal is bad, according to Ron Terry, a Big Island scientist whose company conducts environmental studies for federal, state and local governments.

Terry often deals with NEPA, and has a vested interest in the Trump administration’s proposed changes. He also sits on the state’s Environmental Council, which advises the Hawaii Office of Environmental Quality Control.

Terry said some of the rule changes make sense, such as allowing the electronic distribution of environmental studies. Under the current rules, he says, he has to mail hard copies to various stakeholders. Some of the reports are hundreds or even thousands of pages long.

“It’s important to emphasize that the rules haven’t been updated in 42 years, and are seriously out of date,” Terry said. “There have been a lot of advances in technology. For example, people weren’t necessarily using computers in the past. They were typing all this out. There wasn’t even the internet.”

While many of the proposed changes are good for efficiency’s sake, Terry said there were aspects of the rules that were “downright troubling.”

Like others, he worried the Trump administration was looking for ways to avoid discussions about climate change and allow certain projects to side step environmental review altogether.

This is particularly concerning in a place like Hawaii, which, aside from its susceptibility to climate change and rising sea levels, has been described as the “endangered species capital of the world.”

Terry worked on the environmental review of Saddle Road, which bisects the Big Island between the slopes of Mauna Kea and Mauna Loa. He considers that work a NEPA success story.

The palila is one of the rarest species of bird in Hawaii. USGS

When engineers design a project they generally look for the most efficient route, but because of NEPA officials were forced to consider sensitive habitats, and in particular the forestland that was used by the palila, one of the state’s rarest birds that is also protected under the Endangered Species Act.

Terry said the road needed to be rerouted so that it would have the least amount of impact on the surrounding environment.

After studies found that 100 acres of palila habitat would be destroyed, the federal government agreed to purchase and protect another 10,000 acres of land for conservation efforts.

“I think that most people feel that this was a great net benefit for the species that wouldn’t have happened without NEPA,” Terry said. “There are hard decisions that have to be made during the NEPA process, but the beauty of it is that they are all made out in public.”

Still, Terry said he understands the frustrations that come with complying with NEPA. Not only is it tedious, he said, but because we live in an increasingly litigious society, a single mistake can lead to costly court battles that can delay construction.

Terry said this is likely one of the reasons Maui Mayor Michael Victorino, after a recent meeting with Trump in Washington, D.C., told a local radio station that he supported the rollbacks.

Victorino said at the time that federal regulations were getting in the way of the county’s ability to build more affordable housing on an island where the median home price is $800,000.

Terry said he’s all for increasing efficiencies to cut down on the time it takes to complete an environmental review, but he’s also wary of the potential cost of cutting corners.

“How good, bad or ugly it is will depend a lot on how agencies interpret the new latitude given to them if the rules are adopted as-is and are not reversed in whole or in part by federal courts,” Terry said.

“I can imagine that appointed agency officials in the Trump administration will feel free to exclude many projects from the NEPA process and conduct poor analyses with minimal research and public input on the projects they do analyze.”

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