Four years after Hawaii passed landmark legislation to establish enforceable caps on greenhouse gas emissions, the state health department still hasn’t come up with the rules to implement the law.

The Department of Health is facing a December 2011 statutory deadline to finalize rules, but Priscilla Ligh, an environmental engineer tasked with writing the rules, said that the department would “probably not” meet the deadline.

“I don’t want to blame anyone, it’s just circumstances,” said Ligh. “I think there were good intentions with Act 234.”

Passed in 2007, Act 234 aimed to place Hawaii “among the nation’s leaders in efforts to effect a climate change policy.” The law stresses the threats that global warming poses to the state’s economic well-being, public health, natural resources and environment. 

Hawaii was the second state in the country to pass such legislation, following California. While California implemented rules last year, Hawaii’s DOH hasn’t gotten very far.

“If we were just pioneers, blazing the way out there, that’s one thing. But there’s been plenty of groundwork laid by another state,” said Jeff Mikulina, executive director of Blue Planet Foundation, who was a member of a task force set up to the advise DOH. “It’s been four years, and now we’re going to miss a deadline. And it’s really important.”

Act 234

Act 234 mandates that state greenhouse gas emissions be reduced to 1990 state levels, or below, by 2020. In 1990, emissions totaled 13,660 kilotons of carbon dioxide, excluding aviation, which was not included in the law. At the time it was passed, in 2007, emissions totaled 15,487 kilotons.

The law requires the establishment of an inventory of all greenhouse gas emissions, the designation of a binding cap on emission levels, and the creation of a set of rules that allows DOH to level fines on companies that violate the emission standards.

A Greenhouse Gas Emissions Reduction Task Force was set up to advise DOH. It met 26 times between 2007 and 2009, and submitted a report to the Legislature in 2009. A public hearing was held at the state Capitol in 2008 to present an inventory of emissions sources. Public meetings were held on the neighbor islands to discuss proposed plans. An independent consultant was hired and paid to produce an extensive analysis of the state’s greenhouse emissions and submitted 300 pages of reports to the state in 2009. The consultant presented a list of potential policies that could be enacted to meet state goals. Half a million dollars was expended.

“We were on schedule,” said Mikulina. “We kicked it over to DOH, which I think sat on their hands for a year, and then a new administration came in, and I don’t think they’ve done a lot since.”

It’s up to DOH to come up with the rules, but not much seems to have transpired since the task force finished its work at the end of 2009.

DOH Slideshow Says It’s Time to Get Going

A July, 2011 slideshow developed by DOH for “interested parties,” includes the following slide:

“With federal and state GHG forces looming over DOH . . . DOH needs: rules, a regulatory approach, implementation capacity, and . . . to start!!!!!”

This past legislative session, the state health department requested that the December 2011 deadline for finalizing the rules be stricken from the original act. Ligh described it as an “extension.” Testimony from Blue Planet Foundation said that it would simply “eliminate the requirement” that the health department implement rules.

It didn’t pass.

“We were hoping to get an extension,” said Ligh. “We didn’t get it, so we said we should really start looking at [the law].”

Ligh said that final rules for governing greenhouse emissions were not expected to be released by the end of December. She said she’s working on rules to implement 2010 federal greenhouse gas regulations. She said the proposals to deal with the new federal laws were expected to be released in the next few months for review.

“I just want it out so people know in good faith that we have it out,” said Ligh. “But know this isn’t the end. Just know that it isn’t to the degree that this goal had set out. We need more information. We can’t just start making rules with no back-up.”

State Blames Lack of Staff, Resources

Ligh said that DOH was struggling with insufficient staff and a lack of resources to implement the law.

“We were a little handicapped,” said Ligh. “Apart from our staff, we just can’t handle something like that.”

She also said that the task force never submitted a regulatory scheme to DOH, and the department lacked an inventory of emissions sources, which would provide them with some sort of guide for coming up with the rules.

Mikulina disputes this, noting that in 2008 the task force submitted an inventory and in 2009, it submitted a work plan.

“The bottom line is that it’s been over four years and we are nowhere near rules guaranteeing compliance with greenhouse gas standards,” said Mikulina.

Gary Gill, the deputy director of DOH, said by email that the department was in the middle of crafting greenhouse gas rules, and that “the task force created by law basically recommended that to meet the provisions of the law, the state should implement the Clean Energy Initiative.”

The Hawaii Clean Energy Initiative was signed in 2008 by the state, Hawaiian Electric Co. and U.S. Department of Energy. The Department of Business, Economic Development and Tourism – not DOH – is overseeing the energy agreement, but it was included as a major part of plans to reduce greenhouse gas emissions. Gill also said that the task force gave DOH “very little guidance on what kind of rules should be applied.”

Mikulina responded that, “The Department of Health has been given ample guidance in the Act and a clear outcome that they have to achieve. While we are certainly hopeful that the initiative that was launched to achieve 70 percent clean energy by 2030 will accelerate these goals, there is no guarantee that will happen.”

If DOH fails to enact rules, it could be exposed to potential lawsuits from citizens groups for failure to comply with state law.

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