Our Love Affair with Streamlining

According to Merriam-Webster’s online dictionary, “streamline” is defined as “to make simpler or more efficient.”  When the economy gets tough, it’s no wonder that decision-makers look to streamline land use regulatory processes as a way to move large development projects forward to create jobs and stimulate the economy.

However, regulatory processes are complex, based on years of agency interpretation, permit applicant practice, legislative tweaks, and the occasional court made rule.  Changing any one part of one regulatory process can have systemic implications that roil other regulations that make up the tapestry of land use entitlements.  In their frustration, decision-makers propose wholesale exemptions.

Exemptions have consequences all their own.  The regulatory system and the area of administrative law came about to relieve the pressure on courts from dealing with myriad controversies that became more and more complex as our society advanced.  The regulatory process creates a rational, procedural based framework within which issues such as impacts from proposed developments, can be evaluated and mitigated based on the best available science.  In permitting, agencies review these facts and weigh them against criteria established by a legislative body.  The record the agency creates and the decision it makes is the basis for any challenge taken up at the judiciary by parties with standing.  Courts happily rely on agency expertise on factual issues.  A judge is learned in the law but cannot be expected to know engineering methodology or complex scientific analysis.

What would the world look like without administrative law and the regulatory process?  The courts would have no record from the agency to work from.  All facts would need to be reestablished on the record before the judge or a jury.  There would be no third party agency standing between the persistent permit applicant and the angry plaintiff.  The judge would not have the framework of a reasonable process to evaluate the facts; there would be no standards or criteria to apply to the facts.  In essence, the judge would have to rely on general principles of land use law.  For example, without a permitting process for the coastal zone, a judge in Hawaii might rely on general principles of Hawaii constitutional law and public trust doctrine.  The grey area and uncertainly in this scenario should have lawyers salivating as thoughts of billable hours dance through their heads.

Instead of wholesale exemptions to environmental laws, which are not streamlining, let’s actually think about rational, reasonable processes that are agnostic about outcomes and provide decision-makers with the information they need to make sustainable decisions that balance economic, environmental, and socio-cultural issues.

Panel on Climate Change Adaptation

On December 11, 2011, I joined  Maxine Burkett, Director, Center for Island Climate Adaptation and Policy; John Marra, Climate Services Director for the Pacific Region, National Oceanic and Atmospheric Administration; and Deanna Spooner, Coordinator, Pacific Islands Climate Change Cooperative on Insights on PBS Hawaii to discuss climate change adaptation policy. Enjoy the show:


Insights - Climate Change from PBS Hawaii on Vimeo.

TOD, TAD, TAJ: Transit Development Alphabet Soup

You may have heard of transit-oriented development (TOD) in conversations about Honolulu's 20-mile, 21-station rail transit project. But, you may not have heard of TADs and TAJs.

The Transit Cooperative Research Program's August 2011 Legal Research Digest defines these terms and more in its recent report entitled, Transit-Oriented and Joint Development: Case Studies and Legal Issues.

• Transit-Oriented Development (TOD). TOD sets the framework for good transit-oriented planning and development. The Report identified a performance based definition of TOD: "A TOD typology should meet five main goals: location efficiency, rich mix of residential and commercial choices, value capture, place making, and the resolution of the tension between node and place." The demand for TOD is expected to increase based on three trends "a resurgence of downtowns, continued growth of the suburbs, and a renewed interest and investment in transit."
  
• Transit-Adjacent Development (TAD). A TAD is not good. "A TAD is just that—development that is physically near transit; it fails to capitalize upon this proximity, however, to promote transit riding. A TAD lacks any functional connectivity to transit—whether in terms of land-use composition, means of station access, or site design. A number of U.S. TODs discussed in the literature more closely resemble TADs." The Report goes on to describe TAD's as "more suburban-like, with lower densities, a dominance of surface parking and auto-centric design, limited pedestrian and bicycle access, more single-family homes, and industrial and segregated land uses."
  
• Transit-Joint Development (TJD). TJD is good in the context of transit. According to the Report, "joint development, in the context of TOD, is the process in which a public entity and a private developer work together under a common vision in order to create a successful development." Joint development projects can be classified into nine sub-categories based on two broad categories: revenue-sharing and cost-sharing arrangements. The nine sub-categories are "1) station leases and development, 2) nonstation leases and development, 3) station interface or station connections, 4) benefit assessment district, 5) incentive agreements, 6) cost-sharing agreements, 7) joint use of facilities, 8) capital or service provision, and 9) development-concession leases." The Report found that "four conditions are necessary for TJD: a healthy local real estate market, an entrepreneurial public agency, coordination across agencies, and the recognition that the benefits of TOD extend beyond generating revenues."

The Report surveys the statutory and regulatory frameworks for TOD. It found that "the programs fall into three basic types: those that either encourage or require planning or zoning for TOD and joint development, those that provide funding for TOD-related infrastructure or housing, and those that provide basic legal authority to transit agencies to engage in TOD/joint development activities." The Report also expores market demand, case law, and case studies.

The Report concludes that "TOD/TJD, successful projects do not happen on their own, or just because government has invested public money into transit and other infrastructure. TOD and joint development projects succeed, most fundamentally, because there is a market for those types of development." In addition to supportive market conditions, "structures of both public and private law" are crucial for success. Suggested laws and programs include:

• Transit agency authority to engage in TOD and joint development.
• Direction to local government to plan and regulate for TOD and joint development.
• Federal involvement in TOD and joint development.
• TOD and joint development as part of local and regional visioning processes.
• TOD planning and incentive grant programs.
• Infrastructure investment programs that support or prioritize TOD.
• Infrastructure concurrency or adequate public facilities requirements.
• Funding programs that cover construction costs or provide incentives for the location of housing and other development in TOD areas.

The Report can be downloaded at http://onlinepubs.trb.org/onlinepubs/tcrp/tcrp_lrd_36.pdf.

To read more about transportation issues, visit Transportation.

Climate Change Policy's Other Half: Adaptation

Pundits may disagree on the extent and scope of climate change, but the global climate is changing.  See Joint science academies’ statement: Global response to climate change, available at http://www.nationalacademies.org/onpi/06072005.pdf.

Impacts will include sea level rise and more impactful but less frequent storm events, among other things. Adaptive planning today, will determine how resilient future communities will be to these impacts--particularly for costal communities like Hawaii.

According to the National Oceanic and Atmospheric Administration,
"The State of Hawaii has historically and is currently experiencing
moderate to severe drought, water scarcity and food insecurity."

Climate change adaptation planning is a crucial policy component for addressing climate change that is frequently overlooked by public and private decision-makers. For even if the US were to switch to "using sources that emit no particulates, like nuclear and natural gas, [this] will not make a major difference in averting near-term changes in the climate caused by carbon dioxide. [And,] . . . widespread use of renewables such as wind and solar won't help much, either." See Rober Bryce, Five Truths About Climate Change, Wall St. J., Oct. 6, 2011, available at http://online.wsj.com/article/SB10001424052970203388804576612620828387968.html.

Figure shows Waikiki/IPCC 23 inch sea level scenario.
Source: University of Hawaii, School of Ocean and Earth Science and Technology

PUC Denies HELCO's Biodiesel Supply Contract with Aina Koa Pono-Ka'u LLC

On September 29, 2011, the Hawaii Public Utilities Commission (PUC) issued an order denying Hawaiian Electric Company's (HECO) application, to approve Hawaii Electric Light Company's (HELCO) Biodiesel Supply Contract with Aina Koa Pono-Ka'u LLC (AKP).

The proposal would have provided approximately sixteen million net US gallons annually of locally-produced biodiesel over twenty years. AKP's proposed Big Island project would have consisted of (1) the construction of a biorefinery for the production of biofuel; and (2) the planting, cultivation, and harvesting of the agricultural feedstock that will be refined in AKP's facility to produce the biofuel. The agricultural feedstock would have been grown on currently fallow sugar cane land previously owned by C. Brewer & Co. AKP planned to grow perennial grasses such as sterile napier grasses as well as eucalyptus for their feedstock.

A Variety of Napier Grass
Source: http://www.botany.hawaii.edu/faculty/carr/po.htm

According to HECO's application,

In sum, this Biodiesel Supply Contract is an integral part of the Companies' plans to, including without limitation, (1) continue its strategy to meet the [Renewable Portfolio Standards ("RPS")] requirements that fifteen percent (15%) of the Companies net electricity sales must come from renewable resources by December 31, 2015, twenty-five percent (25%) of [the Companies'] net electric sales come from renewable energy by December 31, 2020, and forty percent (40%) of [the Companies'] net electric sales come from renewable energy by December 31, 2030, (2) further help create energy independence and energy security, (3) use locally grown feedstock for biofuel produced in Hawai'i to help meet the RPS requirement and support the State's goal of diversifying Hawai'i's economy by encouraging the development of local agriculture, (4) reinforce Hawai'i as a showcase for renewable energy, and (5) help preserve Hawai'i's green landscape for future generations.

In denying HECO's application, the PUC found and concluded that the "contract price for the AKP-produced biofuel is excessive, not cost-effective, and thus, is unreasonable and inconsistent with the public interest." The PUC noted that "from a real world, bill-paying perspective, the HECO Companies seek the commission's approval to consistently charge affected ratepayers a premium for HELCO's purchase and use of AKP-produced biofuel under the terms of the twenty-year contract," and that approving the contract would, "displace or curtail existing cheaper renewable alternatives."

A copy of the Decision and Order can be downloaded at http://dms.puc.hawaii.gov/dms/DocumentViewer?pid=A1001001A11I29B53024D28344.

October NRS Speakers' Series: From Agriculture to Fish and Wildlife, Still Protecting Hawaii

On Tuesday, October 4, 2011, the Natural Resources Section (NRS) will hold its monthly brown bag lunch meeting from 12:00 to 1:00 pm at the HSBA conference room.

NRS will host Domingo Cravalho, Jr, an Invasive Species Biologist with the U.S. Fish and Wildlife Service (USFWS)-Ecological Services, Pacific Islands Fish and Wildlife Office in Honolulu, Hawaii.  Mr. Cravalho’s presentation is entitled, “From Agriculture to Fish and Wildlife, Still Protecting Hawaii.”

As an Invasive Species Biologist with the USFWS, Mr. Cravalho’s roles and responsibilities include a focus on brown treesnake issues as well as other invasive species efforts including biosecurity and quarantine in the State of Hawaii, the U.S. Territories of Guam and American Samoa, and the Commonwealth of the Northern Mariana Islands, with future expanded roles throughout other areas in the Pacific region.  He previously worked for the State of Hawaii Department of Agriculture and retired as the Inspection and Compliance Section Chief with the Plant Quarantine Branch in November 2010.  With over 30 years with the State, his former duties included lead inspector in the enforcement of violations into plant and non-domestic animal quarantine laws, assisted with the development and implementation of the Hawaii Biosecurity Program, ensured that proper assessment protocols were followed for the entry of restricted plants, animals and microorganisms, developed program policies and procedures for implementation, drafted proposed quarantine regulations for rulemaking, and worked with the horticultural and agricultural industries in Hawaii to maintain quarantine protection.  He was born and raised in Hawaii and graduated in 1977 with a Bachelor of Science degree in General Agriculture from the University of Hawaii at Manoa.

Non-NRS members welcome on a space available basis.

Evolving the Way We Think about Transportation

Article: Tom Downs, Demographics as Destiny, citiwire.net, Sept. 3, 2011, available at http://citiwire.net/post/2912.

Summary: Mr. Downs discusses the impact of changing demographics (Baby Boomers and Gen. X and Y) on suburbia. He suggests that "walking, biking and transit are about to become the next wave of transportation to shape our urban areas," which requires us to evolve our thinking about transportation:

It ultimately comes down to how we think about the use of the public right of way. Most successful regions start with mapping the way people are walking, biking and using transit in the same way we used to count cars: Look at the flow and the demand. Plan sidewalks with walking in mind. Repair the sidewalks that are falling apart. (It is actually pretty cheap to do.) And how about transit that allows riders to track buses and trains in real time on their cell phones? How about bike accessible transit? How about signal coordination for buses? How about setting a goal for the percent of commuters who bike to work? Most planners say that their weather is not conducive to biking, but the second highest percentage of commuters who bike to work is in Minneapolis (winter) 3.4 percent. Portland, Oregon (rain) is, of course, first with 4.5 percent.