Hawaii Department of Land and Natural Resources Proposes the Release of Alien Insect from Brazil into Hawaii's Environment to Control Strawberry Guava

The Hawaii Department of Land and Natural Resources (DLNR) proposes the release of a scale insect from Brazil for the biological control of strawberry guava. Below is a short description of DLNR's recently published draft environmental assessment (EA), which is a prerequisite to implementing its proposed action under the Hawaii Environmental Policy Act (HEPA).

The problem, according DLNR's draft EA, is that the strawberry guava is an invasive weed and a critical threat to native forests and the natural and cultural resources they contain throughout the State of Hawaii. Since its introduction in the early 19th century, it has become invasive and has gradually expanded into most of the native lowland rainforests, becoming the dominant species over large areas.

DLNR's proposed solution is to release a scale insect from Brazil, Tectococcus ovatus. DLNR considers the Brazilian insect to be "a highly specific insect that is a natural control agent producing leaf galls on strawberry guava in its native range in Brazil." The insect "is known in Brazil to reduce strawberry guava vigor by as much as 25 to 40 percent and fruiting by 60 to 90 percent."

Healthy Strawberry Guava Plant

Infected Strawberry Guava Plant

The recently posted draft EA is available for public review at the Office of Environmental Quality Control. If after considering agency and public comments on the draft EA, DLNR determines that the proposed action will not have a significant effect on the environment, then DLNR will issue a Finding of No Significant Impact (FONSI). This would allow DLNR to begin its release of the Brazilian insect into the environment. However, if DLNR concludes that significant impacts are expected to occur as a result of the proposed action, then an Environmental Impact Statement (EIS) will be required. Among other things, an EIS will require additional study of the proposed action, proposed mitigation, and additional agency and public comment.

For more information see the U.S. Forest Service's website on this issue at http://www.fs.fed.us/psw/programs/ipif/strawberryguava. For a discussion on public concerns regarding DLNR's proposed action, see Feds Plan Bio-Warfare Experiment on Hawaii’s Strawberry Guava.

For more on environmental issues see, Environmental Law.

Hawaii Appellate Court Holds that Decisions By County Councils Are Not Subject to Hawaii's Environmental Policy Act

In a recent decision by the Hawaii Intermediate Court of Appeals (ICA), Mogilefsky v. County of Maui, the ICA determined that the Hawaii Environmental Policy Act (HEPA) was inapplicable to the enactment of zoning ordinances.  HEPA is a general reference to the state's environmental policy act which is embodied in Hawaii Revised Statutes (HRS) Chapter 343 and administrative rules under Hawaii Administrative Rules (HAR) Chapter 11-200.  The broader implication of the ICA's holding is that legislative actions will not be subject to HEPA.

Procedural History of the Case. David B. Mogilefsky (Mogilefsky) appealed a judgment in favor of Defendant County of Maui (County) filed on December 23, 2008 in the Circuit Court of the Second Circuit (circuit court). The circuit court entered judgment in favor of County pursuant to County's motion to dismiss entered on December 15, 2008.

Issue on Appeal.  Mogilefsky argued that County violated HAR § 11-200-26 by rezoning 670 acres in the Honuaula/Wailea 670 project without requiring a developer to submit a Supplemental Environmental Impact Statement pursuant to HEPA. County contended that HEPA was inapplicable, because the enactment of zoning ordinances is not an "agency action" under HRS § 343-2.

Analysis.  HAR § 11-200-2 defines "action" as "any program or project to be initiated by an agency or applicant" and "agency" as "any department, office, board, or commission of the state or county government which is part of the executive branch of that government." The Maui County Council (the Council) is a legislative body and is therefore excluded from this definition of "agency."

Article 3 of the Charter of the County defines the Council as a legislative body and that legislative acts are by ordinance.  The ICA analogized this case to the Hawaii Supreme Court's decision in Sandy Beach Defense Fund v. City Council of City and County of Honolulu, 70 Haw. 361, 370 (1989).  In that case, the Hawaii Supreme Court concluded that "the City Council, as the legislative branch of the County, is not subject to the procedural requirements of HAPA [Hawaii Administrative Procedure Act] when acting in either a legislative or non-legislative capacity."

The ICA read the definition of "agency" in HEPA as limited to the executive branch. The phrase "which is part of the executive branch of that government" qualifies the types of governmental bodies that are applicable "agencies." Because the Council is not a part of the executive branch of County, it is excluded from this definition. Consequently, County's enactment of zoning ordinances, as legislative acts, did not qualify as an "agency action."

ICA Holding and Conclusion.  The ICA agreed with the circuit court--HEPA is inapplicable to this case.

For more on environmental law issues see, Environmental Law.

Kaheawa Wind Power Proposes Maui Wind Farm Expansion

Kaheawa Wind Power II LLC, owned and operated by First Wind, is proposing to construct and operate a 21 megawatt (MW) wind power generating facility and related improvements at Kaheawa Pastures above Maalaea, Maui.

According to the Project's final environmental impact statement (FEIS), the Project will consist of constructing 21 MWs of wind energy generating capacity.  Fourteen General Electric (GE) 1.5 MW wind turbine generators (WTG) would be added to the above pictured site in a string along the existing access road approximately 2,000 feet southeast of the southern end of the existing KWP I turbine string.

The Project's objectives are listed in Section 1.3 of the FEIS as follows:

1. Bring on-line at the earliest possible date a 21 MW wind power generating facility on the island of Maui to increase the portion of Maui’s energy derived from renewable sources and reduce dependencies on fossil fuels.
2. Minimize the cumulative costs, environmental and visual impacts of the new facility by sharing key infrastructure (i.e., access road, equipment parts, construction equipment) with the existing KWP I wind farm.
3. Locate the additional generating capacity in such a way as to minimize the need for additional MECO power interconnection infrastructure, thereby avoiding unnecessary economic and environmental impacts associated with connecting to the MECO system.
4. Ensure that the size and operating characteristics of the new wind farm are compatible with MECO’s overall system requirements to facilitate its integration into the company’s grid.
5. Locate the wind farm in an area with compatible surrounding land uses.
6. Ensure that the new facility is compatible and compliant with the approvals granted for the KWP I site and all their associated conditions.
7. Maintain environmental quality and contribute to maintaining electrical energy costs at a reasonable level.

The Project is anticipated to commence commercial operations in the second quarter of 2011.

For more on energy related projects and issues, see Energy.

U.S. Federal Court Rules that Hawaii Law Intended to Lower Rents Violates U.S. Constitution

HRPT Properties Trust announced today that Chief Judge Susan Oki Mollway of the U.S. District Court in Hawaii ruled that a law intended to lower rents HRPT may charge for its industrial and commercial lands in Hawaii violates the U.S. Constitution and is unenforceable.  HRPT is a real estate investment trust (REIT) that primarily owns and leases office buildings. HRPT leases several properties in Hawaii.

Act 189, was passed by the Hawaii legislature in 2009 and became effective without the governor's signature in July 2009.  Through Act 189, the state legislature took the liberty of clarifying private contract provisions agreed to among private parties contained in long-term commercial and industrial ground leases.  Among other things, the Act requires master lessees to limit any sublease rental amount negotiated or renewed during the period the lease rent is renegotiated with the master lessee to the lesser of a) the "fair and reasonable" amount determined according to the aforementioned requirements or b) the rental amount as calculated under the renegotiation or renewal provisions of the sublease.

According to HRPT's announcement, the Court ruling finds that Act 189 violates the U.S. Constitution's Contract Clause which prohibits most forms of state interference with contract rights, and the Equal Protection Clause because it singles out and targets HRPT for the benefit of its lessees and does not serve any legitimate general public purpose.  For additional case information, see HRPT Properties Trust et al v. Lingle.

For additional postings related to constitutional issues and legislation, see Constitutional Challenges and Legislative Updates.