The Surfrider Foundation and our coastal conservation and community partners have requested the Hawai’i Supreme Court to review a west Kauai pesticide case that will have important implications for the Hawai’i Environmental Policy Act.
Surfrider and partners Hawai’i Alliance for Progressive Action (“HAPA”), Ke Kauhulu O Mana, Punohu Kekaualua III, and Kohola Leo originally filed this lawsuit in 2017, challenging the Hawaii Board of Land and Natural Resources’ (“Board”) decision to reissue a new permit for the use of State land to Syngenta without appropriate environmental review pursuant to the Hawaii Environmental Policy Act (“HEPA”). The Board granted the HEPA exemption despite Syngenta’s widely known practice of using restricted use pesticides on State Conservation District land. Surfrider and our co-plaintiffs argued that Syngenta’s proposed use, which entailed continuing to use the land as a testing ground for genetically modified organisms and routinely spraying restricted use pesticides thereon, would continue to result in significant negative impacts on the environment, including impacts from the extensive pesticide use on nearshore waters. Those impacts have never been considered, and the new permit did not properly qualify for a HEPA exemption.
On Cross Motions for Summary Judgment, which asked the court to issue a decision without a trial, the Environmental Court of the Fifth Circuit granted summary judgment in favor of the state. In June 2018, Surfrider and our co-plaintiffs appealed to Hawai’i’s Intermediate Court of Appeals. On April 30, 2024, in a win for Surfrider and our partners, the Court of Appeals vacated the decision entered in Defendants’ favor. However, rather than properly deciding in Surfrider’s favor and ordering the Board to prepare an environmental assessment or environmental impact statement pursuant to HEPA, the court remanded the case back to the trial court for further proceedings. Under HEPA, where an action may have significant impacts on the environment, an agency must prepare an environmental assessment, if not an environmental impact statement. Environmental assessments consider the affected environment, identification of potential impacts and alternatives, and proposed mitigation measures, and must be subject to public review and comment.
Bianca Isaki, co-counsel with Lance Collins for Surfrider and co-plaintiffs in this case, notes the significant consequences that the Court of Appeals’ decision would have for nonprofit environmental organizations seeking to ensure proper application of HEPA. “The difference between going to trial to determine whether an environmental document adequately discloses impacts that may be significant and determining the sufficiency of that document in light of undisputed facts could be over a hundred thousand dollars in legal fees. The former poses an access to justice issue for many nonprofit public interest groups and is not what Hawaii's environmental laws intended," Isaki says.
The use of State coastal lands which includes spraying of restricted use pesticides has clear significant adverse impacts to the nearby community and environment, and requires thorough consideration under HEPA – and further costly trial proceedings to reach that conclusion are improper.
Surfrider and our partners’ application for writ of certiorari asks the Hawaii Supreme Court to review and correct errors in the Court of Appeals’ decision. The Court has until June 18th to decide whether it will accept the case (and possibly until July 1st if it requests an extension). If the Court accepts review, it will then have 30 days to render a decision.
To learn more about the Surfrider Kauai Chapter’s work on the Garden Isle, please visit the Chapter website here.