Kill Bills HB2712/SB3020 about Science Subzones

Posted by Shelley at Feb 16, 2016 07:10 PM |
Talking points and analysis for bad bills that seek to create "science subzones" to sidestep protections for the special lands of Mauna Kea, Haleakala, and others in demand for controversial (and not insignificant) science and technology uses.

**EDIT: 2/16/16 at 5:19pm: Shortly after posting this blog, we received word that the bill will not be heard! Good job, team! We are remaining vigilant until we can receive full confirmation, but FOR NOW, I think we can breathe a sigh of relief**

 

Mauna Kea has inspired many of us to greater aloha ‘āina, but others have been threatened by this inspiration. HB 2712 and SB 3020 were developed by people “concerned about the future of astronomy on the mountain” in the wake of the Hawai‘i Supreme Court’s invalidation of the conservation district use permit for construction of the Thirty Meter Telescope.  Yet, the Mauna Kea Anaina Hou decision heralded a potentially vibrant future for appropriate place-based uses on the Mauna.  A future in which Western science-based astronomy truly engages with the space and time it shares with  existing Native Hawaiian land uses, culture, and sciences also on the Mauna.  The engineers of HB 2712 and SB 3020 seek to cut off this potential future by reinstalling a narrow understanding of science and technology and at the expense of protections for Hawaii’s lands and the communities that thrive on them.

 

We object to HB 2712/ SB3020 as a bad law because it:

  1. undermines land use regulations, and the purpose of conservation districts in the interests of science and technology developers;

  2. removes the contested case process through which people can publicly present evidence and argument;

  3. authorizes the counties to permit “science and technology” uses that would otherwise be prohibited; and

  4. creates a fast-track for certain SciTech projects at the expense of critical land use regulations and public procedures (land use laws and regulations are the laws that determine how all the lands in Hawai`i are used, developed, protected, or conserved).

We also object to HB2712/ SB3020 on the basis of its broader impacts on Hawai`i’s social and political landscape.

  1. This bill proposes a transparent end run around the Hawai‘i Supreme Court’s ruling that invalidated the Thirty-Meter Telescope’s conservation district use permit for construction on the summits of Mauna Kea.  The Court ordered the BLNR to redo the TMT land use permitting process, under which the TMT would have to meet eight criteria in order to be built in the Mauna Kea Conservation District.  This bill would change that process such that the TMT would only have to meet one or two criteria.  Most importantly, the TMT would not be subject to contested case hearings.

  2. This bill does not only impact the sacred summits of Mauna Kea and Haleakalā.  It would create a fast-track for industrial astronomy, geothermal development, and GMO test field projects in the Land Use Commission (LUC) land use permitting systems - which affect all lands.

  3. In doing so, this bill would undermine ALL land use designations (conservation, agricultural, rural, and urban), which were put in place to guard against improper development and to secure the public trust.

We offer a section-by-section analysis of the shortcomings of this bill.

Section 1 describes a purpose and need that privileges Western “science and technology” at the expense of traditional, place-based sciences.  It is Hawaiian tradition and custom, however, that has been responsible for huge advances in navigation, aquaculture, agriculture, medicine, and food cultivation, feeding a million people in Hawai‘i prior to 1778.  Instead, this bill expressly prioritizes certain science and technology projects that have produced the most contested land uses:  genetics (GMO test fields); alternative energy (wind power plants and geothermal drilling); and astronomy (industrial telescopes placed on sacred summits).  These dicey, experimental land uses require more, not less regulatory and public oversight.

 

Section 2 (b) exempts BLNR-designated scientific and technology research subzones from LUC and county authority to establish land use districts or regulate land uses.  This means that the BLNR will be the one to make districting decisions, instead of the Land Use Commission, which has more extensive knowledge of  land use regulations, and county planning processes, another layer of protection, will be bypassed. We need more, not less, input from the LUC and county land use planning over novel, experimental land uses proposed for these SciTech subzones.

 

Section 2 (c) further alienates the LUC and counties from land use regulation by exempting SciTech subzone use proposals from special use permit requirements, and authorizes a vaguely described “science and technology research permit” to be issued by counties.  This fast-track for land use permitting problematically bypasses the expert agency on land use and, further would exempt “any property owner or person with an  interest in real property” seeking a SciTech subzone designation from BLNR from environmental review requirements under HRS chapter 343. No purpose is served by denying the disclosure of environmental impacts of proposed science and technology uses of Hawai`i’s lands.

 

Subparagraph (d) is most troubling because it eradicates the primary information gathering vehicle for the BLNR - the contested case hearing.  Contested case hearings are open proceedings in which the public may observe and listen to facts, interests, and arguments brought to BLNR in order to inform and improve their decisionmaking.  Instead of these public, information-gathering procedures, HB 2712 substitutes a single public hearing followed by a potential thirty day mediation period between petitioners and the applicant. BLNR appoints the mediator, who submits a recommendation to BLNR for consideration in their final decision.  Mediation, which is already available to BLNR under HRS § 91-8.5, cannot serve the purpose of a contested case.  Mediations are closed proceedings, where parties’ statements cannot be admitted into future court cases,  there are no guarantees of being able to introduce witnesses, evidence, cross-examine other witnesses, and most egregiously, mediation sessions are not considered “meetings,” requiring open, public deliberation under Hawaii’s Sunshine Law (HRS § 92-2).

 

As proposed in HB 2712/ SB3020, BLNR (in conservation districts) and the counties (in urban, rural, and agricultural districts) are given the unprecedented authority to grant permits for construction without being required to consider impacts on natural or cultural resources.  The entire point of the conservation district is to conserve natural and cultural resources, which is why their consideration is expressly described in the existing eight criteria for a CDUP.  Section 2, subparagraphs (d) and (e) would subject proposed scitech developments to a merely one or two permitting criteria: if it either would not unreasonably affect residents, nearby areas, and public services, OR mitigation for unreasonable effects are available. This section eviscerates the primary tool BLNR has for protecting conservation districts - the conservation district use permit (CDUP), which requires projects to meet eight criteria.  The CDUP process was the means by which protectors of Mauna Kea, Haleakala, and even Honoli`i surf break were able to participate in preserving lands that meant most to them.  HB 2712 would drastically reduce BLNR’s ability to regulate conservation districts and remove procedural safeguards for public participation in protecting conservation lands.

 

Section 5 exempts private and public SciTech operations from public auction requirements in securing 65-year leases and provides for nominal rent by adding them to HRS § 171-95 .  This section redoubles the removal of public input on unqualified land use proposals, with the apparent, unsupported purpose of expediting whatever projects proposed to conduct science and technology research and development.  Exemptions from HRS chapter 171 and fair rent requirements is unwarranted.


HB 2712/ SB3020’s many and major exemptions from the review, public participation, and decisionmaking procedures put in place to protect the fragile, unique areas designated for conservation have no place in Hawaii’s legal landscape.  It would destroy the wise balance between long-term land use planning and development imperatives, and with it the delicate trust in the state as public trustees of Hawai`i’s natural and cultural resources.   Art. XI,§ 1, Hawai`i Const. (1978).


TAKE ACTION!

HB2712/ SB3020 have not yet been scheduled for a hearing and let’s keep it that way.  We understand it has been referred to the House Judiciary and Water/ Land Committees and may be scheduled for a hearing soon. Email/ call the below committee members tell them your objections and ask them to refuse to give HB2712 a hearing. Make sure to mention if you are a constituent--your vote is a powerful thing!

Calls are harder to ignore than an email; emails are an opportunity to send educational materials and explain your position uninterrupted. Using slightly different methods of testimony, each with their own pros and cons, is most effective.

House Water/ Land Committee

Ryan Yamane (chair): 808-586-6150, repyamane@Capitol.hawaii.gov

Ty Cullen (vice chair): 808-586-8490, repcullen@Capitol.hawaii.gov

Members:

Cindy Evans: 808-586-8510, repevans@Capitol.hawaii.gov

Scott Nishimoto: 808-586-8515, repnishimoto@Capitol.hawaii.gov

Calvin Say: 808-586-6900, repsay@Capitol.hawaii.gov

Kaniela Ing: 808-586-8525, reping@Capitol.hawaii.gov

Feki Pouha: 808-586-6380, reppouha@Capitol.hawaii.gov

Chris Lee: 808-586-9450, repclee@Capitol.hawaii.gov

Nicole Lowen: 808-586-8400, replowen@Capitol.hawaii.gov

Cynthia Thielen: 808-586-6480, repthielen@Capitol.hawaii.gov

 

House Judiciary Committee

Karl Rhoads (chair): 808-586-6180, reprhoads@Capitol.hawaii.gov

Joy San Buenaventura (vice chair): 808-586-6530, repsanbuenaventura@Capitol.hawaii.gov

Members:

Della Au Belatti: 808-586-9425, repbelatti@Capitol.hawaii.gov

Tom Brower: 808-586-8520, repbrower@Capitol.hawaii.gov

Richard Creagan: 808-586-9605, repcreagan@Capitol.hawaii.gov

Mark Hashem: 808-586-6510, rephashem@Capitol.hawaii.gov

Derek Kawakami: 808-586-8435, repkawakami@Capitol.hawaii.gov

Chris Lee: 808-586-9450, repclee@Capitol.hawaii.gov

Dee Morikawa: 808-586-6280, repmorikawa@Capitol.hawaii.gov

Mark Nakashima: 808-586-6680, repnakashima@Capitol.hawaii.gov

Gregg Takayama: 808-586-6340, reptakayama@Capitol.hawaii.gov

Justin Woodson: 808-586-6210, repwoodson@Capitol.hawaii.gov

Bob McDermott: 808-586-9730, repmcdermott@Capitol.hawaii.gov

Cynthia Thielen: 808-586-6480, repthielen@Capitol.hawaii.gov


Although we understand the House Bill (HB2712) has more momentum, its sister bill - SB3020 was  referred to the Senate's Economic Development, Environment, and Technology and Ways and Means Committees. You can help by telling EETWAM to stay away from this terrible bill.

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