Lawsuit Challenges Hualalai Geothermal Exploration

On October 21, 2015, nine plaintiffs filed an amended complaint in Kona Environmental Court that challenges a permit granted by the Board of Land and Natural Resources (BLNR) to two University of Hawai`i organizations proposing geothermal exploration on Hualalai in West Hawai`i.  The suit claims an environmental assessment was required.  

Defendants Give Up

On February 26, 2016, the permits were cancelled and rescinded by the BLNR at the request of the two University organizations.  The Defendants (the State and the University) then each filed separate motions to dismiss the case on the basis that there were no active issues to be resolved by the Court.  The two motions were heard on May 11, 2016, at 8:00 a.m. by Judge Ronald Ibarra in the Kona Environmental Court and were granted on August 9, 2016..

Details of the Lawsuit

    The U.H. organizations, the Institute of Geophysics and Planetology (HIGP) and the Center for the Study of Active Volcanoes (CSAV), were given an exemption from requirements to prepare an environmental assessment.  Plaintiffs claim that was a legal error on BLNR's part.

    Hilo attorney Gary Zamber represents the nine plaintiffs, including the President and Vice-President of the Pele Defense Fund and the President of the Puna Pono Alliance and six residents of West Hawai`i living near the proposed exploration sites.

    The plaintiffs are concerned with potential impacts on Hualalai’s sensitive cultural and natural environment.  In January the State Historic Preservation Division said “multiple historic properties including burial sites have been recorded” and “there is a distinct possibility that historic properties could be impacted by the proposed project”.

    The U.H. applicants said they would meet with landowners to “determine whether there are any sensitive areas, for example cultural features, sensitive plant or animal species, that we need to avoid or be particularly cautious about impacting.”  The BLNR exemption from preparing an environmental assessment does not apply in a sensitive environment.

    The application also said the proposed project “is part of an overall effort referred to as the ‘Geothermal Resources Exploration Plan for Hawaii’ being undertaken by the applicants”, indicating that the larger project is also in need of environmental review before it is begun.  State environmental regulations require that a “proposed action must be described in its entirety and cannot be broken up into component parts.”

Plaintiffs' complaint

State's answer

University's answer

Details of Geothermal Exploration

Hawai`i’s Department of Land and Natural Resources (DLNR) approved applications from the University of Hawai`i’s Institute of Geophysics and Planetology (HIGP) for permission to conduct geothermal exploration in the Hualalai West Rift Zone, north of Kailua Kona on the Island of Hawai`i.

The first application approved on March 27, 2015, included dozens of proposed exploration sites that were located in agriculture, conservation and urban zones (shown on the application's map below; click the image for a larger map.) 

Because the HIGP project sought an exemption from the requirement to prepare an environmental assessment (EA), and the exemption was applicable only in agriculture zones, it was required to submit a second application that was approved on July 10, 2015.  The new application included additional sites in areas zoned for agriculture and deleted previous sites in conservation and urban zones. 

Click here to see the map from the second application showing additional sites.  Click here for a map that attempts to combine sites from the first application with the new sites map. 

Media reports included the following (Hawaii Tribune-Herald, July 12, 2015): 

"Donald Thomas, director of The Center for the Study of Active Volcanoes at UH-Hilo, said the main reason for adding additional sites was to avoid costly environmental assessments that were required on some of the original parcels...."

The requested exemption was approved, also on July 10, 2015. The approval includes a quotation from the exemption criteria that says the "exemption would not apply in Urban or Conservation land use districts or in sensitive environments."  

Also, the application says:

The proposed project is part of an overall effort referred to as the “Geothermal Resources Exploration Plan for Hawaii” being undertaken by the applicant. The project is being supported by funding from both the U.S. Department of Energy and the Department of Land and Natural Resources. The initial focus of the project will be a MT-based assessment of the Hualalai area and is the first exploration permit application being submitted for this project.

The application was changed to remove the former sites in urban and conservation land use districts, but the DLNR did not address the prohibition against applying the exemption in sensitive environments.  The DLNR also did not address the question of whether the larger project would require environmental review.

A July 19, 2015, opinion from an attorney familiar with the situation concludes by saying:

The DLNR permit for geothermal exploration at Hualalai was improvidently
granted due to (1) inapplicability of the exemption in view of the location’s sensitive
environment and (2) improper segmentation of the proposed action to avoid the need
for environmental review.