"What is left of the State's environmental programs?"

On Tuesday, February 1, 2011, the Natural Resources Section (NRS) of the Hawaii State Bar Association (HSBA) will host guest speaker Gary Gill, Deputy Director of the Environmental Health Administration, Hawaii Department of Health, who will present: "What is left of the State's environmental programs?"

Mr. Gill has had a lengthy career in government and community service. At the age of 26, Mr. Gill was elected to the Honolulu City Council and served two years. Mr. Gill was then appointed as the Director of the Office of Environmental Quality Control and as Deputy Director of Health for the Environment during the administration of Governor Ben Cayetano.

Mr. Gill subsequently transitioned to the non-profit community as Development Director for the Sierra Club, Program Manager for Kokua Kalihi Valley and Executive Director of Waimea Valley on the North Shore of Oahu. Since 2009, Mr. Gill has served as the Program Director for the Blue Planet Foundation of Hawaii where he has developed a CFL bulb exchange program and the Hawaii Home Energy Makeover TV show, among other projects.  Recently, Governor Neil Abercrombie asked Mr. Gill to once again lead the environmental protection programs for the State of Hawaii.

NRS holds its monthly brown bag lunch meeting from 12:00 to 1:00 p.m. at the HSBA conference room.  Guests are welcome but priority will be given to paid members.

9th Circuit Loosens up its 3rd Party Intervention Standard in NEPA Litigation

The "federal defendant" rule was developed through case law in the U.S. Court of Appeals for the 9th Circuit.  The rule categorically precludes private parties and state and local governments from intervening of right as defendants on the merits of NEPA actions.  The rationale for this rule is that such parties lack a "significantly protectable" interest warranting intervention of right under Rule 24(a)(2), because NEPA is a procedural statute that binds only the federal government.

However, the 9th Circuit recently abandoned the "federal defendant" rule in Wilderness Society v. U.S. Forest Service, No. 09-35200, slip op. (9th Cir. Jan. 14, 2011).  Wilderness Society arises out of the U.S. Forest Service's adoption of a travel plan that designated 1,196 miles of roads and trails for use by motorized vehicles in the Minidoka Ranger District of Idaho's Sawtooth National Forest.  The central issue for the 9th Circuit was whether the lower court should have applied the "federal defendant" rule to deny intervention to three groups representing recreation interests.

Diamondfield Jack Campground
Minidoka Ranger District

The 9th Circuit abandoned the "federal defendant" rule, reversed the lower court for applying it, and opined as follows:

When considering motions to intervene of right under Rule 24(a)(2), courts need no longer apply a categorical prohibition on intervention on the merits, or liability phase, of NEPA actions. To determine whether putative intervenors demonstrate the "significantly protectable" interest necessary for intervention of right in a NEPA case, the operative inquiry should be whether the "interest is protectable under some law" and whether "there is a relationship between the legally protected interest and the claims at issue."  A putative intervenor will generally demonstrate a sufficient interest for intervention of right in a NEPA action, as in all cases, if "it will suffer a practical impairment of its interests as a result of the pending litigation." 

(Citations omitted.)  Among other things, the court based its decision on the facts that the "federal defendant" rule was (1) at odds with the normal standards it applies in all other intervention of right cases in cases asserting violations of environmental statutes and (2) out of step with all but one of its sister circuits.

This opinion opens up the door for potential third party defendants in NEPA cases who would have previously been denied intervention under the "federal defendant" rule.

Visit the Environmental Law archives for more on this topic.

Honolulu Rail Transit Project Takes a Huge Step Toward Fruition

On January 18, 2011, the Federal Transit Administration (FTA) issued a record of decision (ROD) for the Honolulu Rail Transit Project, a major milestone for a transportation project.

The ROD is a concise public record of FTA's decision.  It identifies the project and mitigation necessary to avoid or minimize environmental harm.  Issuance of the ROD allows the Project to move forward with final design and construction.

According to a City press release, "Today marks an important milestone in Oahu’s quest to become a more transit-friendly island,” said FTA Administrator Peter Rogoff. “With the completion of the National Environmental Policy Act process, the City of Honolulu has met all of the laws and regulations of the environmental review and we look forward to the day when Honolulu’s citizens can ride the rails in comfort, breathe cleaner air, and avoid getting stuck in time-wasting traffic jams.”

Visit the Transportation archives for more on this topic.

Sustainable Transportation

A recent comparative study by The Brookings Institution, Making Transportation Sustainable: Insights from Germany, explores the key differences and determinants of travel behavior in Germany and the United States.  For purposes of the study, sustainability is defined as follows:

. . . encouraging shorter trips by modes of transportation that require less energy and generate less harmful environmental impacts. Moreover, a more sustainable transportation system should foster commerce, reduce energy consumption and carbon emissions, increase safety, provide equal access to destinations for all groups of society, and enhance the quality of life.

The study concludes that

The German experience offers five lessons to the United States for improving transportation sustainability through changes in travel behavior:

-Get the Price Right in order to encourage the use of less polluting cars, driving at non-peak hours and more use of public transportation

-Integrate Transit, Cycling, and Walking as Viable Alternatives to the Car, as a necessary measure to make any sort of car-restrictive measures publicly and politically feasible

-Fully Coordinate and Integrate Planning for Land Use and Transportation to discourage car-dependent sprawl and promote transit-oriented development

-Public Information and Education to Make Changes Feasible are essential in conveying the benefits of more sustainable policies and enforcing their results over the long term

-Implement Policies in Stages with a Long Term Perspective because it takes considerable time to gather the necessary public and political support and to develop appropriate measures. 

This report was prepared as part of Brookings' Metropolitan Infrastructure Initiative.

Visit the Transportation and Planning archives for more on these topics.