Hawaii DOT Must Prepare an EA for Superferry

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SandBar 6:4, January, 2008 Hawaii DOT Must Prepare an EA for Superferry Sierra Club v. DOT, 167 P.3d 292 (Haw. 2007). *Sarah Spigener, 3L, University of Mississippi School of Law* The Supreme Court of Hawaii has concluded that the Hawaii Department of Transportation (DOT) must prepare an environmental assessment (EA) for the Hawaii Superferry project. Background The Hawaii Superferry project is an inter-island ferry service between the islands of O’ahu, Maui, Kaua’i, and Hawai’i that utilizes harbor facilities on each island. Hawaii Superferry, Inc. proposed to develop and operate the service, which would include two ferries capable of carrying up to 866 passengers and 282 cars per trip. The state and Hawaii Superferry negotiated the details of the project and DOT concluded that several im provements to Kahului Harbor were necessary to accommodate the project. These improvements included the construction of a removable barge configured with a removable ramp, operational support with utility services, security fencing, pavement striping, the placement of boarding gangway ramps, and installation of tents at inspection points or customer waiting areas. DOT prepared a draft EA, but did not reference the needed improvements. DOT later determined that the property “will have minimal or no significant effect on the environment and is therefore exempt from the preparation of an EA.”1 The plaintiffs, environmental organizations Sierra Club, Maui Tomorrow, and the Kahului Harbor Coalition, challenged DOT’s determination that the improvements to the harbor were exempt from the requirements of the Hawaii Environmental Protection Act (HEPA) and the preparation of an EA. DOT and Superferry filed a motion to dismiss or alternatively for summary judgment. The circuit court ruled that the plaintiffs lacked standing and ruled in favor of DOT and Superferry. The plaintiffs appealed these holdings to the Supreme Court of Hawaii. Agency Analysis HEPA requires that EAs and environmental impact statements (EIS) be prepared for certain development projects. The law also assures the public the right to participate in planning projects that may affect the community. Compliance with HEPA involves several steps. First, it must be determined whether a project or program is subject to the environmental review process. If the project is exempt, then the process stagnates. The Environmental Council determines the procedures for certain actions that will probably have “minimal or no significant effects on the environment” and that will be declared exempt from the preparation of an assessment.2 When no exemption applies and the project is subject to environmental review, then a draft EA must be prepared. An EA is an informational document prepared by the agency proposing the action to evaluate the possible environmental effects of a proposed action. Once completed, the public has thirty days to review and comment on the EA. After this, the agency reviews the final EA to determine if any “significant” environmental impacts are likely. If not, the agency issues a finding of no significant impact (FONSI), which allows the project to proceed. If so, the agency must prepare a more detailed EIS. The public process is repeated and the governor or mayor, depending on the agency, must approve the final EIS. After this, the action may be implemented. HEPA provides for judicial review when no EA is prepared, when an agency determines that an EIS will or will not be required, and when an EIS is accepted. The court must determine whether the agency’s factual determinations were clearly erroneous and whether it otherwise complied with HEPA and its implementing regulations, as a matter of law. Likewise, exemption determinations should be reviewed as a matter of law. The organizations contended that they had standing in this case based on two grounds: traditional injury in fact and procedural standing. The court found that the plaintiff could sue on either basis. Standing is a determination of whether the parties have the right to bring suit. The court utilized a three-part standing test: 1) has the plaintiff suffered an actual or threatened injury; 2) is the injury fairly traceable to the defendant’s actions; and 3) would a favorable decision likely provide relief for plaintiff’s injury. The test has been relaxed for environmental cases. The plaintiff must prove 1) injury in fact; 2) economic harm including aesthetic and environmental well-being as interests de serving of protection; and 3) an individual’s injury is not much different from that of a public injury. The “procedural standing doctrine is a means of accommodating the standing inquiry to special circumstances created by injuries to statutory procedural rights.”3 The court concluded that there is procedural standing for members of the public under HEPA because it is a procedural statute that accords procedural rights. The court held that the threatened injury in fact was due to DOT’s decision to bypass conducting an EA and that the procedural injury was due to violations of their procedural rights under HEPA. The appellants also demonstrated that the in juries were caused by DOT and Superferry and that they may be addressed by the court. DOT and Superferry also contested whether the organizations had standing to bring a claim against them on behalf of individual members. The court stated that an organization may sue on behalf of its members when 1) its members would otherwise have standing to sue on their own; 2) the interests it seeks to protect are germane to the organization’s purpose; and 3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. The parties contested the last require ment. Normally, individual participation is required where the plaintiffs re quest money damages or where there are conflicts of interests be tween members. Since neither of those situations applies in this case, the court concluded that the organizations had standing to file suit on behalf of its members. Having established standing, the appellants argued that DOT’s exemption determinations were in violation of the law for several reasons. The court characterized the issue as “whether DOT was correct to analyze only the harbor improvements in making its exemption determination, or was also required to consider the potential environmental impacts caused by the Hawaii Superferry project.”4 The court stated that an agency must first determine whether the project meets the definition of exempt action which is a minor project that will probably have minimal or no significant effects on the environment. The court concluded that the Superferry project was not such an action because DOT’s exemption determination did not consider the secondary impacts that could result from the use of the Superferry on the Kahului Harbor or whether the Superferry operations would have any significant effects on the environment. As a result, the court concluded that DOT’s determination that the improvements to Kahului Harbor were ex empt from the requirements of HEPA were erroneous as a matter of law. The court vacated the circuit court’s judgment, entered a summary judgment on behalf of the appellants, ordered DOT to conduct an EA before the project could proceed, and remanded on other issues. Conclusion The court held that the appellant organizations had standing to sue based on traditional standing and procedural standing tests. The court also held that the appellants had organizational stand ing to sue on behalf of their individual members. The court agreed with the appellants that DOT had er roneously declared the Hawaii Superferry project an exempt action thereby exempting it from HEPA requirements. The court en tered judgment on be half of the appellants and ordered DOT to conduct an EA on the entire Superferry project before it could continue operating and the necessary improvements could be made. Since the Supreme Court of Hawaii entered this judgment in favor of the appellants, the Hawaii legislature has approved a bill allowing the Hawaii Superferry to resume operation. The new legislation, supported by Governor Linda Lingle, allows the ferry to make its Oahu-to-Maui and Oahu-to-Kauai voyages while the environmental assessment is being conducted.5 Endnotes 1.Sierra Club v. DOT, 167 P.3d 292, 310 (Haw. 2007). 2. Id. at 300. 3. Id. at 318. 4. Id. at 329. 5. Christopher Pala, Legislature Clears Way for Hawaii Ferry, N.Y. Times, Oct. 31, 2007
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SandBar 6:4, January, 2008

Sierra Club v. DOT, 167 P.3d 292 (Haw. 2007).

Sarah Spigener, 3L, University of Mississippi School of Law

The Supreme Court of Hawaii has concluded that the Hawaii Department of Transportation (DOT) must prepare an environmental assessment (EA) for the Hawaii Superferry project.

Background
The Hawaii Superferry project is an inter-island ferry service between the islands of O’ahu, Maui, Kaua’i, and Hawai’i that utilizes harbor facilities on each island. Hawaii Superferry, Inc. proposed to develop and operate the service, which would include two ferries capable of carrying up to 866 passengers and 282 cars per trip. The state and Hawaii Superferry negotiated the details of the project and DOT concluded that several im provements to Kahului Harbor were necessary to accommodate the project. These improvements included the construction of a removable barge configured with a removable ramp, operational support with utility services, security fencing, pavement striping, the placement of boarding gangway ramps, and installation of tents at inspection points or customer waiting areas.
DOT prepared a draft EA, but did not reference the needed improvements. DOT later determined that the property “will have minimal or no significant effect on the environment and is therefore exempt from the preparation of an EA.”1 The plaintiffs, environmental organizations Sierra Club, Maui Tomorrow, and the Kahului Harbor Coalition, challenged DOT’s determination that the improvements to the harbor were exempt from the requirements of the Hawaii Environmental Protection Act (HEPA) and the preparation of an EA. DOT and Superferry filed a motion to dismiss or alternatively for summary judgment. The circuit court ruled that the plaintiffs lacked standing and ruled in favor of DOT and Superferry. The plaintiffs appealed these holdings to the Supreme Court of Hawaii.

Agency Analysis
HEPA requires that EAs and environmental impact statements (EIS) be prepared for certain development projects. The law also assures the public the right to participate in planning projects that may affect the community. Compliance with HEPA involves several steps. First, it must be determined whether a project or program is subject to the environmental review process. If the project is exempt, then the process stagnates. The Environmental Council determines the procedures for certain actions that will probably have “minimal or no significant effects on the environment” and that will be declared exempt from the preparation of an assessment.2 When no exemption applies and the project is subject to environmental review, then a draft EA must be prepared.
      An EA is an informational document prepared by the agency proposing the action to evaluate the possible environmental effects of a proposed action. Once completed, the public has thirty days to review and comment on the EA. After this, the agency reviews the final EA to determine if any “significant” environmental impacts are likely. If not, the agency issues a finding of no significant impact (FONSI), which allows the project to proceed. If so, the agency must prepare a more detailed EIS. The public process is repeated and the governor or mayor, depending on the agency, must approve the final EIS. After this, the action may be implemented. HEPA provides for judicial review when no EA is prepared, when an agency determines that an EIS will or will not be required, and when an EIS is accepted.
   The court must determine whether the agency’s factual determinations were clearly erroneous and whether it otherwise complied with HEPA and its implementing regulations, as a matter of law. Likewise, exemption determinations should be reviewed as a matter of law.
      The organizations contended that they had standing in this case based on two grounds: traditional injury in fact and procedural standing. The court found that the plaintiff could sue on either basis. Standing is a determination of whether the parties have the right to bring suit. The court utilized a three-part standing test: 1) has the plaintiff suffered an actual or threatened injury; 2) is the injury fairly traceable to the defendant’s actions; and 3) would a favorable decision likely provide relief for plaintiff’s injury. The test has been relaxed for environmental cases. The plaintiff must prove 1) injury in fact; 2) economic harm including aesthetic and environmental well-being as interests de serving of protection; and 3) an individual’s injury is not much different from that of a public injury. The “procedural standing doctrine is a means of accommodating the standing inquiry to special circumstances created by injuries to statutory procedural rights.”3
        The court concluded that there is procedural standing for members of the public under HEPA because it is a procedural statute that accords procedural rights. The court held that the threatened injury in fact was due to DOT’s decision to bypass conducting an EA and that the procedural injury was due to violations of their procedural rights under HEPA. The appellants also demonstrated that the in juries were caused by DOT and Superferry and that they may be addressed by the court.
      DOT and Superferry also contested whether the organizations had standing to bring a claim against them on behalf of individual members. The court stated that an organization may sue on behalf of its members when 1) its members would otherwise have standing to sue on their own; 2) the interests it seeks to protect are germane to the organization’s purpose; and 3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. The parties contested the last require ment. Normally, individual participation is required where the plaintiffs re quest money damages or where there are conflicts of interests be tween members. Since neither of those situations applies in this case, the court concluded that the organizations had standing to file suit on behalf of its members.
   Having established standing, the appellants argued that DOT’s exemption determinations were in violation of the law for several reasons. The court characterized the issue as “whether DOT was correct to analyze only the harbor improvements in making its exemption determination, or was also required to consider the potential environmental impacts caused by the Hawaii Superferry project.”4 The court stated that an agency must first determine whether the project meets the definition of exempt action which is a minor project that will probably have minimal or no significant effects on the environment. The court concluded that the Superferry project was not such an action because DOT’s exemption determination did not consider the secondary impacts that could result from the use of the Superferry on the Kahului Harbor or whether the Superferry operations would have any significant effects on the environment. As a result, the court concluded that DOT’s determination that the improvements to Kahului Harbor were ex empt from the requirements of HEPA were erroneous as a matter of law. The court vacated the circuit court’s judgment, entered a summary judgment on behalf of the appellants, ordered DOT to conduct an EA before the project could proceed, and remanded on other issues.

Conclusion
The court held that the appellant organizations had standing to sue based on traditional standing and procedural standing tests. The court also held that the appellants had organizational stand ing to sue on behalf of their individual members. The court agreed with the appellants that DOT had er roneously declared the Hawaii Superferry project an exempt action thereby exempting it from HEPA requirements. The court en tered judgment on be half of the appellants and ordered DOT to conduct an EA on the entire Superferry project before it could continue operating and the necessary improvements could be made.
Since the Supreme Court of Hawaii entered this judgment in favor of the appellants, the Hawaii legislature has approved a bill allowing the Hawaii Superferry to resume operation. The new legislation, supported by Governor Linda Lingle, allows the ferry to make its Oahu-to-Maui and Oahu-to-Kauai voyages while the environmental assessment is being conducted.5

Endnotes
1.Sierra Club v. DOT, 167 P.3d 292, 310 (Haw. 2007).
2. Id. at 300.
3. Id. at 318.
4. Id. at 329.
5. Christopher Pala, Legislature Clears Way for Hawaii Ferry, N.Y. Times, Oct. 31, 2007