Sierra Club v. Hawaii Tourism Authority, 23080.

CourtSupreme Court of Hawai'i
Citation59 P.3d 877,100 Haw. 242
Docket NumberNo. 23080.,23080.
PartiesSIERRA CLUB, a California non-profit corporation, Petitioner, v. HAWAI`I TOURISM AUTHORITY, by and through its BOARD OF DIRECTORS and Shari W. Chang in her official capacity as Chairperson of the Board of Directors of the Hawai`i Tourism Authority, Respondents.
Decision Date06 December 2002

Isaac Davis Hall, Jr., Wailuku, for Petitioner.

Winfred K.T. Pong (Deborah Day Emerson, Ann M. Ogata-Deal, and John W.K. Chang, with him on the briefs), Deputy Attorneys General, for Respondents.

RAMIL, and ACOBA, JJ.; with NAKAYAMA, J., concurring separately; and MOON, C.J., dissenting, with whom LEVINSON, J., joins.

Opinion by ACOBA, J.

We hold that Petitioner Sierra Club (Petitioner) has not met the three-part "injury-in-fact" test for standing to assert its claim that an environmental assessment (EA) should have been conducted by Respondent Hawai`i Tourism Authority (HTA) prior to its letting of a contract for tourism marketing services. While we are not unsympathetic to the concerns it raises, Petitioner has not established: (1) that it would suffer an actual or threatened injury as a result of the marketing services proposed in the contract; (2) that the alleged or threatened injury is or would be fairly traceable to expenditures for such services; and (3) that such injury, assuming arguendo that it was suffered or threatened, would likely be remedied by a favorable judicial decision. Further, Petitioner's other bases for standing have no merit because (1) an "informational injury" is insufficient to confer standing; (2) Petitioner has not established a procedural right to protect its concrete interests such that it may rely upon "procedural standing"; and (3) a claim that Petitioner can establish standing with its success on the merits is erroneous because standing must be established at the beginning of a case. Accordingly, we dismiss its petition.


The HTA is charged, pursuant to Hawai`i Revised Statutes (HRS) § 201B-6 (Supp. 2000), with "responsibil[ity] for developing a strategic tourism marketing plan" for the State.1 In that connection, the HTA prepared a draft marketing plan dated June 29, 1999 called "Ke Kumu Strategic Directions for Hawai`i's Visitor Industry" or the "Tourism Strategic Plan" (draft TSP).2 The draft TSP described Hawai`i's unique character as a tourism destination and set forth marketing goals for the HTA.

A "Hawai`i Tourism Product Assessment" report was prepared by KPMG LLP under the direction and guidance of the HTA's Tourism Strategic Plan Committee. KPMG LLP "gathered extensive community-wide in-put about tourism from four major stakeholder groups: Hawai`i visitors, residents, private businesses, and government." PricewaterhouseCoopers LLP submitted an assessment of the draft TSP, entitled "Comparative Strategic Assessment of Hawai`i Tourism Executive Summary" and dated June 29, 1999. PricewaterhouseCoopers utilized the assessment compiled by KPMG LLP and arrived at certain major findings and conclusions.

In a June 30, 1999 press release, the HTA informed the public that community meetings would be held to consider the draft TSP. The press release indicated that copies of the draft TSP and the assessment studies would be available at the HTA's office, at major libraries throughout the state, and on the HTA's website. The draft TSP and the two assessment studies were submitted for evaluation at ten public community meetings conducted throughout Hawai`i from July 13 to July 29, 1999. Copies of these documents were also made available to the public at these meetings. Affidavits submitted by Petitioner indicate that its members attended the community meetings and submitted comments and objections.

On August 2, 1999, the HTA issued a request for bids on a "Proposal for Tourism Integrated Marketing Management Services" (the Marketing RFP [(Request for Proposal procedure)]). The Marketing RFP solicited "proposals specifically for the overall administration of the marketing services for all specified major market areas (MMAs)."3 As the "Project Goal," the Marketing RFP emphasized that the HTA "[was] seeking a vendor to provide management of global Tourism Integrated Marketing Services for the State of Hawai`i4 that contribute to the goal of an average annual growth rate of approximately 4.6% in visitor expenditures through the year 2005."5 (Emphasis added.) In that respect, the draft TSP, which was provided to the bidders, reemphasized that

[t]he HTA's priority is to achieve managed growth of Hawai`i's tourism industry by focusing on increasing visitor expenditures. Cognizant of Hawai`i's finite wealth of natural resources, the HTA recognizes that growth in visitor arrivals is secondary to growth in visitor expenditures.

(Emphasis added.)

The Marketing RFP identified seven "Overall Project Goals" for the contractor, as follows:

1. Increase promotional presence and brand identity to more globally competitive levels to optimize performance in each MMA.
2. Structure marketing efforts to stimulate demand during shoulder periods (spring and fall).
3. Develop and execute cooperative programs with travel partners to optimize use of HTA resources for brand marketing.
4. Support TV and film initiatives that provide cost-effective, high-profile exposure through liaison with State and County film offices.
5. Place increased emphasis on U.S. West, U.S. East and Japan.
6. Place sustained emphasis on Europe and Canada.
7. Place developing emphasis on Other Asia, Oceania and Latin America.

(Boldfaced emphases in original and underscored emphases added.) "[A]n annual calendar year budget of approximately $38 million" was set for the contract. The contract was "for a minimum of 3 years with an option to renew to the successful Contractor" and would be "effective January 1, 2000."

On September 15, 1999, the HTA selected the Hawai`i Visitors and Convention Bureau (HVCB) as the contractor, subject to successful contract negotiations. On February 28, 2000, the HTA and the HVCB executed a contract pursuant to HRS § 201B-12(b) (Supp.2000)6 (the marketing contract). The marketing contract, effective as of January 1, 2000, provided that $117 million was available to fund the agreement over its term. However, the contract is subject to certain legal conditions. The Marketing RFP provided that the contract "may be terminated during its term at the discretion of the HTA for reasons such as non performance of the Contractor, change in the administration and/or funding for this program, or for the convenience of the state."


On January 11, 2000, Petitioner filed a petition for declaratory and injunctive relief (Petition) under HRS § 201B-15 (Supp. 2000),7 which vested this court with original jurisdiction8 in any action to which the HTA is either a party or in which questions arise as to the validity of any HTA action. The petition challenged the action of the HTA by its Board of Directors and Shari Chang, Chairperson of the Board [hereinafter, collectively, HTA], "in approving the expenditure of $114 million9 in state funds during the years 2000-2002 for advertising and marketing services without first preparing an [EA]" under HRS § 343-5(a) (1993).10 An EA is "a written evaluation to determine whether an action may have a significant effect." HRS § 343-2 (Supp.2000). The term "significant effect" is defined as

the sum of effects on the quality of the environment, including actions that irrevocably commit a natural resource, curtail the range of beneficial uses of the environment, are contrary to the State's environmental policies or long-term environmental goals as established by law, or adversely affect the economic welfare, social welfare, or cultural practices of the community and State.

HRS § 343-2. HRS § 343-5(b) (Supp.2000) provides in relevant part that an agency such as the HTA "shall prepare an [EA] for such action at the earliest practicable time to determine whether an environmental impact statement [(EIS)] shall be required." An "EIS" is defined as follows:

[A]n informational document prepared in compliance with the rules adopted under section 343-6 and which discloses the environmental effects of a proposed action, effects of a proposed action on the economic welfare, social welfare, and cultural practices of the community and State, effects of the economic activities arising out of the proposed action, measures proposed to minimize adverse effects, and alternatives to the action and their environmental effects.

HRS § 343-2.

In its petition, Petitioner claims standing to bring this action because, inter alia, (1) it is a national conservation organization (paragraph 11 of the petition), (2) some of its members reside in areas that will experience alleged adverse impacts (paragraph 12), (3) its members' interests "encompass a variety of economic, educational, cultural, religious, aesthetic, scientific, environmental, health, and recreational uses of areas directly and indirectly affected by the HTA's project" (paragraph 13), (4) the expenditure of funds over three years will result in increased tourist travel to the islands (paragraph 34), (5) the HTA's actions "directly, immediately and adversely affect Petitioner's organizational interests, and its members' use and enjoyment of the land, air and waters will be impaired" (paragraph 14), (6) the lack of an EA means the HTA's "decisions will be uninformed and will adversely affect the Petitioner" (paragraph 15), (7) there is "a risk that serious environmental impacts will be overlooked" (paragraph 16), and (8) "Petitioner has been and will be frustrated in its ability to participate in the debate and decision-making over the [HTA]'s program" (paragraph 17).

Petitioner prayed, among other things, that this court: (1) enter an order declaring that "[the HTA] is ... implementing and expending State funds, in violation of Chapter 343, without the preparation of a required [EA]" and...

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