Island Watch

AG Finds No Legal Basis for Extension Of Draft EIS Public Comment Periods

Developers who want to allow increased opportunity for the public to comment on draft environmental impact statements do so at their own legal peril, the state Department of the Attorney General has determined.

The opinion was made in a letter January 30, 1998, to six legislators who, a month earlier, had asked the attorney general for an opinion on the potential legal liability developers might be exposed to if they voluntarily extended the deadline for public comment on a draft EIS. The question arose as a result of a real-life case: Hawaiian Electric Company’s efforts to seek a permit from the Board of Land and Natural Resources to construct a transmission line on Wa’ahila Ridge bordering Manoa Valley on O`ahu.

Author of the opinion was Christopher A. Sproul, an assistant regional counsel for the U.S. Environmental Protection Agency, Region 9. Sproul is on assignment temporarily to the state Department of the Attorney General. Attorney General Margery S. Bronster approved Sproul’s letter.

HECO, Sproul writes, “has indicated that it would consider extending the public comment period, but has expressed concern ‘that if the public comment period is extended beyond the statutory 45-day period, the draft EIS could be at risk in that an extension could flaw the statutory requirements'” (Sproul is quoting a November 25, 1997, letter from HECO to Rep. Scott Saiki.) “Apparently,” Sproul continues, “HECO is concerned that if it agrees to extend the public comment period, approval of the project could be challenged for failure to comply with HRS Chapter 343’s procedural requirements.”

Sproul notes that there is no statutory or regulatory provision for extension of the comment period, which is set by law at 45 days. Still, state agencies have, on occasion, extended the comment period by means of letters of consent with the applicant, coupled with corresponding public notice of the extension published in the bulletin of the Office of Environmental Quality Control.

“Our department recognizes that extending the public comment period … allows the public more time to comment on complicated project proposals with the agreement of the parties most likely to be burdened,” Sproul writes. “Unfortunately, while this would appear to be reasonable from a policy perspective, our department is unable to opine that this or any other procedure for extending the public comment period on a draft EIS beyond 45 days is authorized under existing law.”

“Every time I see articles like the one ‘Pesticide-free products finding favor with many consumers’ promoting so-called organic food, I can’t help but recall P.T. Barnum’s dictum, ‘There’s a sucker born every minute.'”

So starts a letter to the editor of the Honolulu Advertiser written by Rick Klemm, who signs as executive director of a new group called RESCUE Hawaii. (RESCUE stands for Responsible Stewardship by Citizens Upholding the Environment.) The group, most of whose incorporators represent agricultural chemical interests, fits the definition of what elsewhere is called an “astroturf-roots” movement — i.e., an organization that may be intended to appear as a grass-roots movement, but is wholly artificial.

Klemm’s letter, dated January 30, wasn’t published by the Advertiser, but it was distributed by him to members of the Legislature, stamped, “Legislative FYI.”

Klemm goes on in his letter to denounce the “myths” surrounding organic food — noting, by the by, that “all food is organic.” Organic food is not pesticide free, he says, since “all plants contain their own pesticides,” and, in any case, organic farmers “may use natural pesticides such as arsenic, nicotine, and vitamin D.”

Klemm concludes his philippic by conceding organic foods are safe to eat, “and so are conventionally grown foods… So, why pay more for organics?”

The stationery of RESCUE Hawaii describes the group as “promoting the responsible, integrated use of pesticides, fertilizers, and other pest control technologies to benefit Hawaii’s people and environment,” with “environmental stewardship based on facts, not fear.” In incorporation papers filed with the state last November, it claims it is to be operated “exclusively for charitable purposes within the meaning of Section 501(c)(6) of the Internal Revenue code” — a section that allows groups to lobby but limits their donors’ ability to claim tax deductions for gifts.

Klemm, its executive director, used to be the public relations staff person for the Hawai`i Sugar Planters Association. He now is in private practice as a consultant and lobbyist. According to the most recent list of registered lobbyists published by the state, Klemm’s clients include three agricultural or horticultural trade organizations based in the mainland (American Crop Protection Association; Responsible Industry for a Sound Environment; and Western Crop Production Association); and six chemical manufacturers: Ciba, DowElanco, DuPont, Monsanto, United Horticultural Supply, and Zeneca Agricultural Products.

On the board of directors of RESCUE Hawaii are two other “private citizen” types in addition to himself, Klemm told Environment Hawai`i. Don Gerbig, a consultant, and Chuck Furr. Others on the board include Joy Kono, an executive with Brewer Environmental, which distributes and sells agricultural chemicals in Hawaii; and Allen Teshima, employed by DuPont.

Klemm denied that there was any link between his work as a lobbyist and his role as executive director of RESCUE Hawaii, for which he is paid as an independent contractor. Rather, he was simply interested in promoting discussion of pesticide issues based on a “common sense” approach, based on science.

RESCUE Hawaii is a membership organization, Klemm said. Dues to individuals are $30 a year. So far, not many members have signed up, but the organization is still only a few months old, he pointed out.

On February 12, the county of Hawai`i presented its case to the Land Use Commission in support of its petition to place into the Urban land use district about 1,000 acres in West Hawai`i. Among those testifying was county engineer Robert Yanabu, who addressed the matter of drainage.
With urbanization of the land, nearly all of which is on the slopes of Hualalai or Mauna Loa, drainage problems could be formidable. Yanabu was not overly concerned; channelization of streams could easily handle any drainage problems that might be created by increased development on the land.

LUC Vice Chair Casey Jarman asked whether channelization might create its own environmental problems. Yanabu seemed confused by the question. No, he replied, finally. Channelization “defines streams” and “maximizes land use,” he said.

Jarman pressed the point. What about stream biota, aquatic resources, and the like, she asked.

Yanabu drew a blank. There simply weren’t any to be concerned about here, he said.

While channelization of streams is not regarded as a problem on the Big Island (where Mayor Yamashiro’s largest public works project has been the $17 million channelization of Alenaio Stream in downtown Hilo), elsewhere, channelization is not so highly favored. It is generally regarded as detrimental to aquatic life in its disturbance or destruction of habitat. It can actually increase severity of downstream flooding. And last, but by no means least, channelization can turn streams into sewers, carrying pollution — petrochemical products, fertilizers, pesticides, and rubbish — directly to the sea.

Still, channelization does “maximize land use.” And that would seem to be the county’s main, and perhaps only, concern.

The February issue of Environment Hawai`i contained an erroneous account of the outcome of a vote by the Board of Land and Natural Resources on rent charged to holders of revocable permits. Contrary to our report, the BLNR voted to reject the proposed rental reductions for holders of revocable permits.

Volume 8, Number 9 March 1998