Blue Ocean Preservation Soc. v. Watkins

• Citation: 754 F. Supp. 1450
• Decision Date: 08 January 1991
• Docket Number: Civ. No. 90-00407 DAE.
• Parties: BLUE OCEAN PRESERVATION SOCIETY, a Hawaii non-profit corporation; Sierra Club, a California non-profit corporation; and Greenpeace Foundation, a Hawaii non-profit corporation, Plaintiffs, v. James D. WATKINS, Secretary Department of Energy, et al., Defendants.
• Court: United States District Courts. 9th Circuit. United States District Court (Hawaii)

754 F. Supp. 1450

BLUE OCEAN PRESERVATION SOCIETY, a Hawaii non-profit corporation; Sierra Club, a California non-profit corporation; and Greenpeace Foundation, a Hawaii non-profit corporation, Plaintiffs, v. James D. WATKINS, Secretary Department of Energy, et al., Defendants.

Civ. No. 90-00407 DAE.

United States District Court, D. Hawaii.

January 8, 1991.

COPYRIGHT MATERIAL OMITTED

Paul Spaulding, III and Arnold Lum, Sierra Club Legal Defense Fund, Inc., Honolulu, Hawaii, for plaintiffs.

Daniel A. Bent, U.S. Atty., Linda J. Joachim, Asst. U.S. Atty., Honolulu, Hawaii, and Gary B. Randall, Atty., U.S. Dept. of Justice, Washington, D.C., for defendants.

ORDER DENYING DEFENDANT UNITED STATES' MOTION FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT

DAVID A. EZRA, District Judge.

I. Introduction

This is an action brought by three environmental groups ("Plaintiffs") seeking to compel the federal government to prepare an Environmental Impact Statement ("EIS") covering the development of geothermal energy on the Island of Hawaii (the "Big Island") before proceeding further with that development. Defendant federal departments and agencies (collectively the "Government") have moved for summary judgment on the grounds that Plaintiffs' claim is not ripe, and that this court therefore lacks subject matter jurisdiction. Plaintiffs have filed a cross-motion for partial summary judgment on the issue of whether the geothermal project constitutes "major federal action" within the meaning of 42 U.S.C. § 4332(2)(C). This motion presents a major question for resolution in this action.

II. Factual Background

A. The 4-Phase Hawaii Geothermal Project

In 1978, in order to encourage the commercial development of geothermal energy, the State of Hawaii, with the cooperation of Congress and the Department of Energy, began the Hawaii Geothermal Project (the "Project"). It was envisioned that the Project would be carried out in four stages: (1) the Hawaii Geothermal Resource Assessment Program ("Phase I"), (2) the Hawaii Deep Water Cable Program ("Phase II"), (3) the Hawaii Geothermal Resource Verification and Characterization Program ("Phase III"), and (4) Construction of the Commercial Hawaii Geothermal Project ("Phase IV"). The Project was intended to provide large quantities of electric power,¹ generated by geothermal energy plants on the side of the Big Island's Kilauea volcano, and transported to the islands of Maui and Oahu via underwater and overland cable. The early phases were to be carried out primarily with public funds to remove the uncertainty and risk, and thereby encourage private investors to undertake the ultimate Project development (Phase IV).

Phase I was jointly funded by the State of Hawaii and the U.S. Department of Energy ("DOE"), with the federal government contributing $10.7 million, 80% of the total funding. It resulted in the drilling of one geothermal well and the establishment of a small 2.5 megawatt demonstration plant (recently closed down) in the Puna district on the Big Island. Phase I provided important data on the geothermal resource base and has now been completed.

Phase II, the Deep Water Cable Program, was a study of the feasibility of transmitting electricity via a submarine cable system from the Big Island to Maui and Oahu. The federal government provided over $24 million (83% of total cost) for the research, design, construction and routing of an undersea cable. This included not only generic cable development research, but also site-specific route surveys between the islands as well as actual test-laying of cable on site. At-sea tests have been finished and this phase is essentially completed.

In conjunction with these first two phases of the Project, the Hawaii legislature has enacted a series of laws designed to further the Project, which it terms a "federal/state partnership effort." See the 1988 Act, discussed infra at Section II.B. These include laws granting favorable excise tax treatment to sellers of geothermal energy (1978-Act No. 135), designating geothermal subzones for development purposes (1983-Act No. 296), and granting agency authority to set geothermal royalty rates (1985-Act No. 138).

Phase III has now begun, with Congress having already appropriated $5 million of federal funds toward it. It involves the drilling of 25 commercial scale exploration wells throughout the Kilauea East Rift Zone to "verify" the geothermal resource. As a preliminary matter in this phase, two slim-bore scientific observation holes have, at state (not federal) expense, already been drilled. Completion of Phase III will clear the way and set forces in motion for the private construction of the full-scale 500 megawatt project, which is Phase IV.²

B. The Geothermal and Cable System Development Permitting Act of 1988

In 1988, to further accelerate and facilitate the Project, the Hawaii legislature enacted the "Geothermal and Cable System Development Permitting Act" (the "1988 Act"), codified at H.R.S. §§ 196D-1, et seq. The 1988 Act is designed primarily to streamline the approval and permit process.

The 1988 Act defined the Project in terms of its ultimate goal (Phase IV), and specifically recognized the interdependence of its two fundamental components:

(7) The fundamental interrelationship between the development of geothermal resources and a cable system and the magnitude of the cost to undertake each of these developments clearly indicate that neither will be undertaken without the firm assurance that the other also will be undertaken in a synchronized and coordinated manner to enable both developments in substance to be completed concurrently....

H.R.S. § 196D-2 (emphasis added).

In addition, the 1988 Act established the Interagency Group, a body with representatives from each agency deemed to have jurisdiction or permitting authority over some aspect of the Project. Under the statute, eight state agencies were represented and eight federal agencies (all of whom are named defendants) were invited to join the group. All eight accepted the invitation, and seven sent representatives to some or all of the meetings of the Interagency Group.³

The Interagency Group's mission is to consolidate and streamline the permitting process for the Project. The purpose is to overcome the daunting array of federal, state and local permits and processes that have discouraged potential commercial developers. The Group has compiled a master list of necessary permits, and it is expected that it will be involved in establishing a timetable for regulatory review, conducting necessary hearings, and consolidating governmental activities.

C. The Extent of Federal Involvement in the Project

In addition to the contribution of federal funds, and the arguably significant role various federal agencies and officials have played as part of the Interagency Group, the federal government has been involved in the Project in a number of other ways.

As early as 1978, DOE contracted with a private consultant for a "Direct Use Overview for Hawaii and Total Use Scenario for Puna (HI)."⁴ The purpose of the resulting report is stated in its Summary:

As a means of accelerating the environmentally acceptable use of geothermal resources in the State of Hawaii, this report presents an overview of the potential for direct utilization (non-electric) in the state and a scenario for development to the year 2020 of the most promising prospect — Puna, on the Big Island of Hawaii.

This document, commissioned by DOE, sets forth a series of recommendations for the development of geothermal energy in the Puna district. It has provided groundwork and guidance for much of the Project.

DOE has provided planning and financial assistance in a number of actions aimed at driving commercial geothermal development forward, independent of its participation in the phases of the Project itself. Plaintiffs have submitted a list of 21 DOE-sponsored reports, funded by DOE contracts, that deal specifically with geothermal energy development in Hawaii. In addition, when the state passed legislation for the designation of resource subzones, DOE provided most of the funding for the necessary geothermal resource assessment and impact analysis.

More recently, Patricia Port, Regional Environmental Officer for the U.S. Department of Interior conducted two meetings in October 1989 and June 1990 with state officers and the National Park Service, the Fish and Wildlife Service, and the U.S. Geological Survey. These meetings monitored progress on the Hawaii Geothermal Project Master Plan, and were designed to share information on agency concerns so the Master Plan could be adjusted to mitigate such concerns and facilitate expeditious implementation. A third such meeting was scheduled for December 1990.

Additionally, it appears that every federal agency named as a defendant in this action will have some role in permitting the Project when it reaches Phase IV.

The Government's role in the Project has not gone unacknowledged. As already noted, in the 1988 Act, the Hawaii legislature described the Project as a "federal/state partnership." This "partnership" characterization of the Project has been echoed a number of times in various contexts.

The 1990 Proposal to Congress for funding for Phase III utilized the heading: "HAWAII GEOTHERMAL PROJECT: A Federal-State-Private Partnership Leading Toward Commercialization." That Proposal explained that "a government-private-partnership is . . . necessary to prove the resource and allow private commercial development to go forward."

In May 1990 U.S. Senator Daniel Inouye sent a letter to one of his colleagues regarding the 1990 Proposal in which he stated that the total funding of Phase III would "be divided equally between the private sector and a State and Federal government partnership." (Emphasis added.)

In January 1990, DOE held a hearing in Honolulu on "National Energy...