Environmental law

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Supreme Court oral argument at 9am, order reversing the lower court at 3pm.

If only all appeals reached decision this quickly.

In what must be a record (especially in the Hawaii Supreme Court, which had in the past few years become legendary for the length of time it considered some cases), the Court issued a unanimous order in the “Superferry EIS” case.  Bottom line: the State should have required the interisland ferry service to undertake an environmental review.  Opinion to follow.

The Supreme Court briefs of the parties are posted here.

Summary from the Honolulu Advertiser here.  The Star-Bulletin’s write up is here.  Superferry still says the service will commence four days from now. 

Seriously, though: the procedure followed by the Court is not all that unusual, if the decision’s swiftness is.  In cases where appellate courts are faced with looming practical deadlines such as this one…

Continue Reading ▪ Whoa! That Was Fast: HAWSCT Reverses Superferry EIS Case 5 Hours After Orals

The Honolulu Advertiser has posted an interesting story, on a topic not widely reported.  The story, “Hawaii renters fear cost of growth limits,” starts off by noting that development limits have downsides, which may be felt more deeply by some segments of the community:

While a recent survey showed 61 percent of Hawai’i residents wouldn’t mind paying higher taxes to protect the environment, the number drops when the respondents are renters instead of home owners.

The survey, conducted on behalf of the Hawai’i 2050 Task Force on Sustainability, also showed that respondents would pay more for housing if it meant protecting the environment and keeping wide open spaces for agriculture and conservation lands.

There are always tradeoffs when it comes to the “environment vs development” battles, of course.  It doesn’t take a degree in economics to figure out that decreasing the supply of homes by limiting development will…

Continue Reading ▪ The Price of “Paradise”

The Ninth Circuit has issued a new opinion in Northern California River Watch v. City of Healdsburg (No. 04-15442, Aug. 6, 2007). 

The case involves the post-Rapanos standard for how “navigable waters of the United States” is defined in the Clean Water Act, and what wetlands are covered under the Act’s jurisdiction.  The court summarized its decision, holding that the controlling test from the Rapanos plurality (4-4-1) decision is Justice Kennedy’s “significant nexus” test:

Healdsburg discharged the sewage into a body of water known as “Basalt Pond,” a rock quarry pit that had filled with water from the surrounding aquifer, located next to the Russian River. 

The issue is whether Basalt Pond is subject to the CWA because the Pond, containing wetlands, borders additional wetlands that are adjacent to a navigable river of the United States. The district court held that  discharges into the Pond are discharges into the…

Continue Reading ▪ Clean Water Act Post-Rapanos — Ninth Circuit’s New Opinion in Northern Cal. River Watch v. City of Healdsburg

Today’s NY Times is running a story, After Lobbying, Wetland Rules Are Narrowed, on the aftermath of Rapanos v. United States, the decision where a plurality of the Supreme Court decided the Corps of Engineers’ Clean Water Act jurisdictional rules were too broad.

The story’s headline and lede are off base, implying that the regulations were being “pulled back” since the “rules could lead to federal protection of isolated and insignificant swamps, potholes and ditches” —

After a concerted lobbying effort by property developers, mine ownersand farm groups, the Bush administration scaled back proposedguidelines for enforcing a ruling governing protected wetlands and streams.

(emphasis added).

Whoa, hold on a minute there, hoss. I thought that scaling back jurisdiction was the whole point of this post-Rapanos exercise. 

In that case, five Justices agreed on the result (although not the reasoning) that the then-existing Corps regulations exceeded their statutory…

Continue Reading ▪ NYT on Clean Water Act Rules After Rapanos

HnlIn “The downside of paradise,” the San Francisco Chronicle’s travel editor writes:

News flash: There are problems in Paradise. 

Actually, I don’t believe that any place is heaven on earth  —  though I’ve been to my fair share of purgatories, or worse  —  but some readers are disappointed that I don’t always highlight the lowlights of Hawaii. 

What about the sluggish traffic on Kauai’s Coconut Coast or in Kailua-Kona on the Big Island, they ask. What about the helicopters that crash during sightseeing tours? And, did I know that many Hawaii residents oppose the coming interisland ferry service?

The article highlights the problem of somewhere perhaps being too good for its own good, and is, in some ways, the mainland perspective on these local stories on the development vs.  preservation dynamic that is so common locally in land use.  About the photo — can you see Waikiki’s iconic

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Continue Reading ▪ Trouble in “Paradise” — The Raindrop Never Believes It Is Responsible for The Flood

Recently, I was a guest on Jay Fidell’s ThinkTech program on Hawaii Public Radio, talking about legal issues that may arise when legislation is targeted at specific individuals or companies (what I refer to as “single victim legislation”). 

The issue raised its head when the Hawaii Legislature seemed ready to consider a proposal requiring one company — and one company only — to undertake an environmental impact statement before beginning its interisland ferry service.  Further background here and here. 

In short, whenever the government attempts to change the ground rules mid-stream, it raises several concerns:

  • Contracts Clause – the US Constitution prohibits a state from enacting a law “impairing the Obligation of Contracts.”  This prohibits a state legislature from altering the terms of a contract existing at the time of the law’s passage, especially when directed at specific parties.  A law is even more suspect when a state is

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Continue Reading ▪ Legal Issues in Single Victim Legislation