The Hawai`i Supreme Court agreed last month to hear arguments on whether the University of Hawai`i should have prepared a full environmental impact statement for its Haleakala High Altitude Observatory Site master plan — a plan the state Department of Land and Natural Resources determined years ago was a prerequisite to any further telescope construction, including the Advanced Technology Solar Telescope (ATST).
In November 2010, the university accepted a final environmental assessment (FEA) for the plan, determining that it would not have a significant effect on the environment. The non-profit group Kilakila `O Haleakala, which seeks to preserve the mountain’s cultural and natural resources, challenged the decision in circuit court two weeks later.
Despite the pending court challenge, the state Board of Land and Natural Resources approved the plan in December along with a Conservation District Use Permit (CDUP) for the ATST (since dubbed the Daniel K. Inouye Solar Telescope), which would be the first telescope constructed under the plan.
In the years that followed, Kilakila has pursued a number of lawsuits related to the development of the observatory site and the construction of the ATST, in particular. Its challenge to the 2010 CDUP resulted in the Hawai`i Supreme Court voiding the permit. Its subsequent challenge to a second CDUP, issued by the Land Board in 2012 following a contested hearing, is awaiting a decision by the Intermediate Court of Appeals.
In June, the ICA ruled on Kilakila’s lawsuit against the master plan EA, finding in favor of the university.
In his request for a hearing before the Hawai`i Supreme Court, Native Hawaiian Legal Corporation attorney David Kimo Frankel, representing Kilakila, argued that the ICA had erred when it looked only at the administrative record regarding the university’s preparation and acceptance of the EA.
“Confining review to an administrative record not only set a dangerous precedent for future [Hawai`i environmental review law] litigation, but also limited the [ICA’s] analysis here — allowing it to ignore the significant impacts disclosed in the ATST FEIS,” he wrote.
What’s more, Frankel argued, the ICA ignored at least four procedural requirements of the state’s environmental review law, Chapter 343 of Hawai`i Revised Statues. The law requires that 1) agencies must avoid improper segmentation, 2) an EA must provide sufficient information to determine whether anticipated impacts constitute a significant effect, 3) the agency must take a “hard look” at the information, and 4) all impacts of a project must be disclosed and assessed in an EA, he wrote.
Given those requirements, the university cannot conclude that the master plan would have no significant impact when it has already admitted that construction and operation of the ATST would result in major, adverse, short- and long-term direct impacts on traditional cultural resources, Frankel wrote.
“Although clothed in the rhetoric of conservation, the [master plan] is not a plan to simply conserve resources. The plan’s primary purpose is to allow the ATST to be constructed. After all, the plan was not even prepared until DLNR informed the university that a [master plan] was necessary in order for the ATST to be approved,” Frankel wrote.
He concluded, “Curiously, the [plan] prohibits new facilities from obscuring the observation function of existing facilities, but does not prohibit construction that impairs or obscures sight planes or views. It specifically calls for solar observatories to be painted white … even though the color white has even greater visual impacts. In other words, the resources the [plan] allegedly protects are not even an after-thought in a plan intended to foster more development of the summit.”
(For more on this case, see “Maui Telescope Opponents Lose Appeal of Haleakala Management Plan Study,” in our July 2014 issue.)
Volume 25, Number 4 October 2014
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