OPPOSE HB2358 - harmful environmental review exemptions

/

MARCH 15 UPDATE:

HB2358 HD1, which exempted certain “affordable” housing projects from any and all environmental review requirements under our environmental review laws, was passed with amendments that make it less problematic in the Senate Housing and Agriculture and Environment Committees on Thursday, with 127+ written testimonies in opposition. This bill is essentially defeated for this session!

MAHALO NUI everyone!

HB2358 HD1, the “EIS exemption” bill will be heard in the Senate Housing and Agriculture and Environment Committees on Thursday, March 14, 1pm in Senate conference room 225. 

This bill would exempt certain “affordable” housing projects from any and all environmental review requirements under our environmental review laws, regardless of the severity of a project’s potential impacts. You can learn more about this harmful bill below. 

Sample testimony:

Aloha Chair Chang, Chair Gabbard, Vice Chair Hashimoto, Vice Chair Richards, and Members of the Committees,

My name is ______ and I respectfully OPPOSE HB2358 HD1, which needlessly threatens our environmental and cultural integrity and overall quality of life through an outright exemption to environmental review for certain “affordable” housing projects.  

Current rules already allow for a carefully-tailored categorical exemption to environmental review for certain "affordable" housing projects in the urban district, provided that they are unlikely to result in significant impacts to public trust resources, cultural practices, and other environmental considerations. Exemptions granted under the current rules are also subject to public notice requirements that minimize the potential for unanticipated significant impacts due to project planners’ lack of familiarity with any given project site. This exemption was carefully crafted after close consideration of the myriad public interests that may be at stake in the development of such projects.

This measure would instead allow all such projects to be developed without any environmental review, and without any public notice, regardless of the severity of potential environmental, cultural, and socioeconomic impacts and threats to the public's interest.  

Our environmental review law allows decisionmakers and the public to make more fully-informed decisions that can balance and mitigate potential long-term impacts to the public interest. This ensures prudent planning while reducing conflict, minimizing adverse outcomes, and safeguarding the health and well-being of present and future generations. Please do not roll back this critical law under the mistaken guise that we would simply be "codifying" existing rules - this measure goes far beyond what our existing rules allow.

Accordingly, I respectfully urge the Committees to HOLD HB2358 HD1. Mahalo nui for the opportunity to testify.

February 27 update:

Unfortunately, HB2358 HD1 was passed out of the House Finance Committee. Thank you to everyone that lent your voice to this issue, we still have a couple changes to defeat this bill on the Senate side!

HB2358 HD1 would turn a blind eye to any and all potential ecological, cultural, health, economic, and other impacts, including avoidable ones, from certain “affordable” housing projects by completely exempting them from any environmental review. This bill has a hearing on Monday, February 26 at 12:30pm in the House Finance Committee. Please act now to oppose this harmful bill before it advances to the Senate - details and sample testimony below.

What the bill does & why it is bad

Environmental review processes safeguard our native ecosystems, cultural sites, public health, economy, and quality of life by ensuring that project decisionmakers consider impacts to these and other public interests, as well as ways these impacts might be mitigated. These reviews enable informed decisions that balance and mitigate long-term impacts on our environment, culture, and society.

HB2358 HD1 would exempt certain “affordable” housing projects from any and all environmental review requirements under our environmental review laws, regardless of the severity of a project’s potential impacts. 

This goes far beyond Hawaiʻi’s environmental review rules, which allow for a “categorical exemption” to environmental review for certain "affordable" housing projects on urban lands. This exemption only applies to projects that are unlikely to result in significant environmental impacts, such as when a project occurs in a “particularly sensitive environment” like critical habitat for endangered species, or an area of particular cultural sensitivity. Public notice and recordkeeping requirements as well as our Sunshine Law allow for community review, and in some cases community input, in decisions to issue a categorical exemption for “affordable” housing projects under the current rules.

HB2358 HD1 would instead allow for such projects  to be developed without any environmental review or any public notice, regardless of the severity of a project’s potential environmental, cultural, and socioeconomic impacts, the sensitivity of project sites, or the potential to mitigate any threats to the public interest through better project planning. 

Notably, the “urban” district where these projects may take place contains vast areas that are not fully developed, and that may host sensitive natural and cultural features and traditional and customary Native Hawaiian practices. For example, this district includes most of the coastal region from Kahana through Kahuku on Oʻahu; Kaunakakai on Molokaʻi; Hāna, Maui; and Keauhou on Hawaiʻi Island; among many, many other areas. As is reflected in the current rules, affordable housing projects should not be totally excused from environmental review protections even included in supposedly “urban” areas.  

While the critical need for affordable housing in Hawaiʻi is recognized and felt urgently, exempting developments from all environmental and cultural review may seriously  and needlessly impact our environmental and cultural integrity and overall quality of life, for generations to come.  

Sample testimony

Aloha Chair Yamashita, Vice Chair Kitagawa, and members of the House Finance Committee,

My name is ______ and I respectfully OPPOSE HB2358 HD1, which needlessly threatens our environmental and cultural integrity and overall quality of life through an outright exemption to environmental review for certain “affordable” housing projects.  

Current rules already allow for a carefully-tailored categorical exemption to environmental review for certain "affordable" housing projects in the urban district, provided that they are unlikely to result in significant impacts to public trust resources, cultural practices, and other environmental considerations. Exemptions granted under the current rules are also subject to public notice requirements that minimize the potential for unanticipated significant impacts due to project planners’ lack of familiarity with any given project site. This exemption was carefully crafted after close consideration of the myriad public interests that may be at stake in the development of such projects.

This measure would instead allow all such projects to be developed without any environmental review, and without any public notice, regardless of the severity of potential environmental, cultural, and socioeconomic impacts and threats to the public's interest.  

Our environmental review law allows decisionmakers and the public to make more fully-informed decisions that can balance and mitigate potential long-term impacts to the public interest. This ensures prudent planning while reducing conflict, minimizing adverse outcomes, and safeguarding the health and well-being of present and future generations. Please do not roll back this critical law under the mistaken guise that we would simply be "codifying" existing rules - this measure goes far beyond what our existing rules allow.

Accordingly, I respectfully urge the Committee to HOLD HB2358 HD1. Mahalo nui for the opportunity to testify.

Testimony instructions

  1. Register for a capitol website account if you haven’t yet (youʻll need to confirm your registration by responding to an automated email)

  2. Sign in to capitol.hawaii.gov with your registration information and click the "Submit Testimony" button.

  3. Enter ”HB2358” where it says "Enter Bill or Measure."

  4. Input your information and your written testimony, select your testimony option(s)—in-person + written, remotely + written, written only. Please consider providing verbal testimony (in-person or remotely) if you are able! Note: Virtual testimony option may be disabled 24 hours before the hearing.

  5. If you are testifying via Zoom, be sure to review these instructions (page 4)

Crossover Check-in

/

Yesterday was first crossover, marking the midway point of the 2024 Legislative Session! Thanks to the consistent engagement and advocacy of our members and supporters, we have been able to defeat many misguided measures, and have made remarkable progress on others. Read on for a summary of highlights from the legislature thus far:

Red Hill Bills

Still alive is HB2690 HD2, which would establish a WAI Policy Coordinator, additional staff positions to assist the coordinator, and a Red Hill remediation special fund. We have supported this bill with amendments to better protect the Policy Coordinator’s work from being influenced or undermined by political pressure in the years and decades it will take to fully remediate our ʻāina and wai.

Also alive is HB1896 HD1, which would expand the ban on PFAS-containing products passed via Act 152 in 2022. This bill would prohibit the manufacture, sale, or distribution of food packaging, food serviceware, and cosmetic and personal care products containing PFAS “forever chemicals” beginning on January 1, 2027. A substantially similar bill, SB504 SD1 HD3, died at the last minute during conference committee last year - fingers crossed that we can get this year’s proposal past the finish line this year!

Unfortunately, most of the other Red Hill-related bills have failed to meet their legislative deadlines. 

Wai Bills

SB3327 SD1 is a transformative measure that would finally implement decades-old recommendations to free the Water Commission from special interest political influence in the management of our precious wai. This bill would authorize the Water Commission to choose its own Chair (currently selected by the Governor) and hire independent legal counsel (rather than rely on the Governor's Attorney General). It would also clarify that employment decisions over the Commission’s lead staff person should be made by the Commission and not the Chair alone, based on objective and transparent criteria. It would further give the Commission the authority to enforce its laws and orders with meaningful penalties, and streamline its authority to respond to water emergencies such as those threatened by Red Hill or the Lāhainā fires (read more about SB3327 SD1 at the Sierra Club's Capitol Watch website). 

With overwhelming community support, including and particularly from the Maui Komohana community, SB3327 SD1 was heard and passed by the Senate Water and Land, Judiciary, and Ways and Means Committees. Stay tuned as we continue to push this measure through the House of Representatives.

Also still in play is HB1544 HD1, a bill that would give the Water Commission the authority to levy meaningful fines against recalcitrant and deep-pocket water code violators. A substantially similar bill was vetoed by Governor Josh Green last year, despite the urging of over three dozen community organizations and countless individuals to let it pass into law. According to Water Commission staff, Governor Green’s veto justification last year appeared to be based on testimony from the Land Use Research Foundation, which misleadingly suggested that affordable housing would somehow be impacted by county water departments’ immediate implementation of the increased fines. Legislators fortunately so far have seen past the exploitative fearmongering around our housing challenges by opponents of this measure, and it has passed over to the Senate.

Invasive Species

It appears that our legislators have heard the calls from their constituents for meaningful and proactive action to control and eradicate invasive pests, like the little fire ant and coconut rhinoceros beetle, that could permanently impact life on these islands. Thanks in large part to the voluminous and clear testimonies from the community, HB2758 HD2, the omnibus biosecurity bill, has sailed through its House Committee hearings, despite protests by the Department of Agriculture. SB3237 SD1, in a last minute hearing by the Judiciary and Ways and Means Committees, was also heard and passed on March 1st. Continued community support will be critical to keeping these bills moving through the Senate and House, respectively.

Clean Elections

SB2381 SD2, a “clean elections” bill that would offer public campaign funding for candidates for office, has already crossed over from the Senate to the House. This is another potentially transformative measure that would free both incumbents and challengers from having to solicit campaign contributions from deep-pocket special interests, and instead spend their time and energy focused on the needs and interests of their constituents - including those who care deeply about protecting our environmental and cultural integrity for current and future generations. 

Bad Bills Countered/Stopped

As usual, we have seen a number of measures that would have resulted in long-term sacrifices of our environmental and cultural integrity, public health, food security, and quality of life, for questionable public benefit. Fortunately, thanks in large part to community advocates and thoughtful decisionmakers, many of these bills have been stopped or amended to mitigate their potential harmful impacts. These include:

Land Use Commission

SB2175 - this measure would have stripped the Land Use Commission of its ability to protect our food security, cultural practices, natural resources, affordable housing opportunities, and other important public interests in land use district changes (e.g., agricultural to urban) of up to 100 acres at a time. Water and Land Chair Lorraine Inouye, hearing the concerns of dozens of testifiers, fortunately deferred this measure after its first hearing.

SB2204 SD1 - this measure would have allowed counties to forego “technical studies” - including environmental review - in petitioning the Land Use Commission for land use district boundary changes involving potentially thousands of acres at a time. Water and Land Chair Lorraine Inouye, responding to community concerns, amended this bill to ensure that counties are not excused from submitting “archaeological, cultural, and biological survey” studies as part of their district boundary amendment petitions for changes to the agricultural and conservation districts. While this was a positive amendment, the bill language still raised the risk of potentially incomplete petitions that would prevent the LUC from fulfilling its statutory and constitutional responsibilities. Fortunately, the bill died after failing to receive a hearing by the Judiciary Committee.

Environmental Review

SB3047 SD1 would have created a new category of actions exempted from the environmental review requirements of our environmental review law, namely, certain “affordable” housing projects in the urban districts. Unlike the current and carefully balanced regulatory exemption for certain affordable housing projects, this measure would have completely exempted all such projects from any environmental review, even if they raised the potential for severe ecological, cultural, public health, or economic impacts. Moreover, the public would not be given any notice regarding the exemption of these projects from environmental review, unlike under the current regulatory requirements. Fortunately, SB3047 SD1 died after not receiving a hearing in the Ways and Means Committee. Unfortunately, its companion, HB2538 HD1, has made it to crossover. Stay tuned for our next chance to stop HB2538 HD1.

Threatened and Native Species

HB2472 and SB3161 would have rolled back existing protections for threatened species, lowering the standard for protective measures and even giving the Department of Land and Natural Resources the ability to override the judgment and expertise of the Endangered Species Recovery Committee, among other provisions. Fortunately, both measures were deferred after their first hearing.

Energy and Resiliency

As originally proposed, SB2994 and SB2335 would have prevented our building codes from being updated for the better part of a decade, locking in building standards that do not respond to the rapidly changing realities of our climate crisis, and thereby jeopardizing human health and safety as well as our islands’ climate resiliency, and even foreclosing critical federal funding opportunities that are contingent on up-to-date codes. SB2335 would have further given developer interest groups more seats on the State Building Code Council, and required a “cost benefit analysis” before any updates are made to the state building code. SB2335 was killed by the Government Operations committee, and SB2994 was amended in its SD1 to ensure that energy code updates still occurred on the current schedule, mitigating concerns regarding the climate resiliency of new buildings. HB2089 HD1, a very similar bill to SB2994, was also amended to ensure that the energy code remains updated on the current schedule - read more about the remaining concerns with this bill below.

Bad Bills Still Alive

Unfortunately, there are still a small handful of bills that raise serious concerns regarding their impact to our environmental and cultural integrity. These include: 

HB2358 HD1, the companion to SB3047 SD1 described above, which would completely exempt certain “affordable” housing projects from any of the requirements under our environmental review law.

SB2677 SD1, which would roll back our general requirement that new single-family residential units be equipped with solar hot water heaters. As currently drafted, the bill would allow for variances to be issued for gas-powered heaters for units in a "low or moderate income" district, or in a region prone to wildfires. Given the health impacts of gas appliances, and the ever-increasing costs of fossil fuels, this bill would saddle future tenants of new residential developments with both the costs and health impacts of gas water heaters while also walking back Hawaiʻi’s commitments to a carbon negative future.   

HB2089 HD1, a similar bill to SB2994 SD1, would delay the adoption of the International Building Code and International Residential Code into the State Building Code for nearly a decade at a time (current law requires these codes, along with the International Energy Code, to be adopted within two years of their publication). This would result in buildings that do not reflect the latest technological, planning, and construction standards developed in response to climate threats such as wildfires, hurricanes, and floods. Given what we know about the impending impacts of the climate crisis, this measure may render our residents and communities more vulnerable to climate impacts, in an era when we should be doing all we can to protect ourselves from an increasingly unstable environment. 

These are just some of the many, many bills that we have tracked and testified on this legislative session. As you can see, we cannot do this work alone - and in many cases, engagement and advocacy from readers like you have made all the difference in what has been accomplished thus far. THANK YOU SO MUCH to all who have responded to our action alerts, shared bills of concern, and otherwise done your part to engage with the legislature this year!