Moving the Goal Posts
Laws should appropriately balance commercial interests and the concerns of individuals. Two bills now pending in the Legislature lack that balance. One, SB2535, proposes wiping out Hawai`i County geothermal ordinances – giving a special benefit to Puna Geothermal Venture (PGV). Another, SB3020, proposes eliminating contested cases from applications for Mauna Kea astronomy development (and at other development sites) for the special benefit of the Thirty Meter Telescope (TMT). Both bills are reactions to court proceedings and both bills propose to move the goal posts for the advantage and benefit of commercial interests.
In Gov. Ige’s January 25, 2016, address to the Legislature he said:
A few years ago, we saw the demise of the SuperFerry. Its failure has been attributed to environmental objections and a hostile court. But that is not exactly what happened. The fact is the state failed to follow the law. When we tried a legal end run, it also failed. The point is the state should have followed the law and done the right thing in the first place.
While the circumstances are very different, we are now going through some very difficult days with the Thirty Meter Telescope. When I visited Mauna Kea last April, I felt deeply that something was not right.
In 2012 PGV’s noise and vibration from 24/7 drilling of a new well disturbed nearby residents. An outpouring of complaints led Hawai`i County’s Council to pass a bill that, when signed by the mayor on December 5, 2012, became Ordinance 12-151. The law says in part “geothermal resources exploration drilling and geothermal production drilling operations being conducted one mile or less from a residence, shall be restricted to the operating hours of 7:00 a.m. – 7:00 p.m.”
In December 2014 PGV announced plans for the 24/7 drilling of a new geothermal well, claiming the night drilling ban did not apply. Puna Pono Alliance (PPA) and two residents filed a suit challenging PGV’s disregard of County law. PGV then filed a motion to dismiss the community suit based in part on an argument that state geothermal regulations should preempt or trump local law. However, the Third Circuit Court denied PGV’s motion.
SB2535 proposes to boost PGV’s court argument by saying “regulation of geothermal resources development and geothermal resources exploration ... shall be reserved to the State unless delegated to the counties by statute” ... and SB2535 proposes to make the new law to preempt county geothermal authority retroactive to December 4, 2012 – the day before the County’s night drilling ban was enacted.
The Puna community’s decades long protests over perceived negative health impacts they attribute to PGV and community claims of inadequate government regulation of PGV both found support in a 2013 county sponsored study (the Adler report) and complaints about accidents and events at PGV during recent years have finally been getting some attention (including the 2012 night drilling ban).
County government is more closely connected to and accessible by the people, and therefore may be more accountable. Local communities are sources of innovation and catalysts for statewide change. However, the ability of local governments to pass laws that protect the health, safety and welfare of their constituents has been increasingly attacked nationwide in recent years by special interest groups. In those legitimate areas of local concern, Counties should be able to build on and improve minimum standards set by the State, reflecting their communities’ unique character and needs – one size does not fit all.
In the Governor’s address – when he said about the Superferry “we tried a legal end run, it also failed” – he referred to a 2007 special session of the Legislature called by Gov. Lingle to pass a law that attempted to negate a court injunction against operating the superferry before its environmental review was completed. The Hawai`i Supreme Court eventually held that 2007 special law was unconstitutional.
Citizens and State agencies should oppose SB2535 first because preemption of county geothermal regulation generally is a bad idea and, second, because it proposes to give PGV a special benefit in the ongoing Third Circuit law suit. An appropriate balance of commercial interests and the concerns of local residents can be realized best by allowing county geothermal laws to supplement statutes and rules of the State to improve protection of the environment, public health and public safety. Residents of Puna have experienced adverse effects in those matters for decades and an ability to speak to the issues at the county level has proven to be their most legitimate available recourse – SB2535 is aimed directly at that recourse.
SB3020 and its companion bill HB2712 were described in a Hilo news report as having been proposed by commercial interests “concerned about the future of astronomy on [Mauna Kea] following the loss of the Thirty Meter Telescope’s land use permit” while an opponent said “the bill is just a way to change the rules in favor of the state after it lost an appeal of the $1.4 billion project’s Conservation District land use permit for Mauna Kea. When you can’t prevail with the law, you change the law”.
The Hawai`i Supreme Court recently ruled that issuance of the permit violated the due process constitutional rights of TMT opponents. These bills propose to eliminate contested case rights not only for Mauna Kea telescope permits but for a wide range of development interests across the state. For many years Hawai`i’s appellate courts have said that a contested case may be required by due process when an action affects constitutional rights. It is unlikely that the changes proposed in SB3020 to avoid contested cases would survive judicial review.
Gov. Ige also said in January that good government begins with being truthful. “When we live without truth, our actions fail to pass the test of time. Moreover, we tend to repeat our mistakes because we have not learned from them.” These bills to preempt county geothermal laws and eliminate contested cases for commercial advantages should be opposed. Seeking to inappropriately emphasize commercial advantages over the concerns of individuals demonstrates a failure to learn from lessons of the past.