Hawaii environmental law being reshaped in private
talks
Apr 1 - McClatchy-Tribune Regional News - Dan Nakaso The Honolulu
Advertiser
A group of builders, environmental groups, lawyers and public agencies
and institutions has been quietly meeting in private to help shape the
first overhaul of Hawai'i's environmental laws in 40 years, even as
lawmakers hold public hearings on a bill that is likely to go nowhere
this session.
In public, many of the people affected by Senate Bill 2818 have
testified against the details of the measure -- while simultaneously
meeting in private to find consensus that will lay the groundwork for
new legislation, most likely in the next legislative session.
The members of the so-called "environmental review working group" formed
in response to SB 2818 have signed confidentiality agreements, use a
professional facilitator who helps guide their discussions and have
since broken up into smaller subgroups that have their own meetings.
The Outdoor Circle is not part of the working group, so its director of
environmental programs, Bob Loy, can only testify in public hearings in
favor of SB 2818, with some reservations.
"Those of us who have invested a lot of time, energy and money
into the process don't know what's going on," Loy said. "We're moving
along with this open legislative process and we're reading rewrites and
new drafts of bills and going into the next legislative committee to
testify. At the same time, we know there's stuff going on in the
backrooms that makes what's going on in the front rooms worthless."
The state Capitol has a long history of political opponents meeting
privately to hammer out legislative language, then suggest new consensus
language to key lawmakers that ends up as law.
And although the concept of working groups dates to at least 2006, the
idea of formal meeting times, agendas and confidentiality agreements for
the groups' members over issues of great public interest has raised
eyebrows among people who regularly participate in public hearings.
However, the state Office of Information Practices that administers
Hawai'i's open records law and the Uniform Information Practices Act
said the concept of working groups complies with statutory requirements.
And proponents of working groups emphasize that the groups'
recommendations are always ultimately heard in public and voted on by
legislators.
They also say that working groups are the best vehicle to reach
consensus on highly contentious issues such as Hawai'i's environmental
review process, which has played a direct -- or indirect -- role in
derailing high-profile projects such as the Hawaii Superferry and the
$350 million Hokuli'a development on the Big Island, while fueling the
Islands' reputation as a hostile place to do business.
SB 2818 is designed to streamline the Islands' environmental review
process and make it more efficient and consistent.
But proponents and opponents argue over whether the bill would actually
create a better process or make it more confusing -- while failing to
protect native species.
AVOIDING 'CHAOS'
Since Feb. 1, the nine members of the environmental review working group
have met twice a week, along with additional subgroup meetings.
They represent the University of Hawai'i, which prepared a report that
looks at overhauling Hawai'i's environmental review process; the state
Health Department's Office of Environmental Quality Control; state
Health Department's Environmental Council; the Building Industry
Association, a private trade organization; Earthjustice, a nonprofit
public interest law firm; Belt Collins, an international planning,
design and consulting firm; The Nature Conservancy, an international
conservation organization; the Land Use Research Foundation of Hawai'i,
a statewide, private, nonprofit research and trade association of major
Hawai'i landowners and developers; and the Sierra Club, a volunteer-run
environmental organization.
Representatives of some of the organizations in the working group
declined to be quoted -- or even be interviewed for background --
because of their confidentiality agreements.
State Sen. Mike Gabbard, D-19th (Kapolei, Makakilo, Waikele), chairs the
Senate's Energy and Environment Committee and created the environmental
review working group when the first public hearing on SB 2818 dissolved
into "opposition from all sides," he said. "Everybody was against it."
Gabbard emphasized that any recommendations that come out of the
environmental review working group will be fully aired before lawmakers.
"We're attempting to overhaul Hawai'i's broken environmental review
system," Gabbard said. "It would be chaos if we tried to do this in
public. I'm all for sunshine and keeping everybody in the know. But I
thought this was the best way to find consensus on something of this
importance that affects so many people."
It's not the first time Gabbard has used special working groups to deal
with complex issues.
Gabbard created a "gas variance working group" in February 2009 over the
issue of solar water heating tax credits. The group included
representatives from the state Public Utilities Commission; state
Department of Business, Economic Development and Tourism; state
Department of Taxation; the Gas Co.; Hawaiian Electric Co.; and the
solar industry.
In the end, the group reached unanimous consensus on the tax credits,
but not on the issue of the gas variance.
This February, Gabbard created a "biofuels tax credit working group"
over SB 2232 that has a DBEDT representative serving as
"referee/mediator," Gabbard said.
The members represent ethanol producer Pacific West Energy, Hawaii
Bioenergy, the Hawaii Renewable Energy Association and Hawaii Biodiesel.
"The group arrived at unanimous consensus on recommendations to divide
up the tax credit limits -- $9 million for ethanol and $3 million for
other biofuels," Gabbard wrote in an e-mail.
" ... These working groups do not have any authority or power to make
laws or even rules. They function simply to develop recommendations to
propose to the Legislature. Their recommendations are not binding on the
Legislature. The Legislature is free to adopt, reject or modify the
recommendations of any of these working groups."
Jennifer Brooks, a staff attorney at the state Office of Information
Practices, had never heard of the term "working group" at the Capitol
until she was contacted by The Advertiser, but said the idea seems to
conform with state law.
"The basic concept of legislators asking interested parties to work
together and come up with a compromise on a bill -- we've seen that,"
Brooks said. "But, no, I haven't heard the term 'working groups,' let
alone where they work with a facilitator and sign confidentiality
agreements."
Generally speaking, Brooks said, "the Legislature has its own rules for
openness and hearings and is not subject to the sunshine law. From OIP's
perspective, because they're not subject to the sunshine law, they will
try to get people to work together outside of a hearing and get people
to reach consensus on language. So these groups would not be subject to
the sunshine law."
RENAMED ROAD
Gabbard has sat in on some of the discussions of the environmental
review working group and is happy with what he's seen and heard.
"It's such a complex issue," Gabbard said in an interview. "So when you
see an environmentalist on one side and a landowner on the other side
agreeing with each other, it really gives me a good feeling about this
group."
Gabbard got the idea for working groups while serving as vice chairman
of the Senate's transportation committee, which is chaired by Sen. J.
Kalani English, D-6th, (East Maui, Moloka'i, Lana'i).
English had created a working group over the potential renaming of Fort
Barrette Road in Kapolei.
"Hawaiian civic clubs wanted to rename Fort Barrette after a Hawaiian
name," English said. "People from the military came in and wanted the
name to remain. Both have valid histories but you can't ask us to choose
between both histories. So they resolved their differences."
The result is that the name Fort Barrette Road remains but the nearby,
newly reopened North-South Road is now called Kualaka'i Parkway.
"And now both sides understand each other's histories more," English
said. "This is how a lot of the international community operates."
From 1991 through 1994, English served as an adviser to the ambassador
of the Federated States of Micronesia at the United Nations in New York,
where he saw the working group concept in action.
English imported the idea to the Hawai'i Capitol in 2006 as chairman of
the Senate energy committee that was looking at bills that "laid the
groundwork for renewable energy."
"Do people feel comfortable saying what they really feel in a public
forum?" English asked. "My experience has been that they have a prepared
statement that they read and then they talk to you on the side and say,
'This is what we really mean.' "
Like Gabbard, English emphasized that any working group recommendations
are heard in public and must be approved by lawmakers.
"We've actually expanded democracy and strengthened democracy at a time
when democracy is quickly vanishing," English said. "The public only
sees the negotiations that fail. But the vast majority of them work. And
I've seen many wars averted using this."
Reach Dan Nakaso at
dnakaso@honoluluadvertiser.com.
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McClatchy-Tribune Information Services
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