Mar. 3, 2022 / Kassandra Kometani
Introduction
Conversations about environmental justice in the United States often center around the disproportionate impacts inflicted upon black and Hispanic communities. While these burdens are undeniably widespread and relevant, there seems to be far less awareness about the struggles of the nation’s indigenous people. In particular, Native Hawaiians have endured decades of degradation to their land, water, and air while much of their plight remains unknown to those outside of the islands. A recent story made local headlines after lawmakers passed a bill in July 2020 that would effectively block plans to expand a landfill on Oʻahu’s Waiʻanae coast. Senate Bill (SB) 2386 will prevent landfills from further encroaching on the homes of Native Hawaiians since the bill requires a half-mile buffer zone between residential areas and waste facilities. Prior to the passage of SB 2386, local zoning ordinances allowed for the disproportionate siting of hazardous waste facilities in close proximity to communities. Despite the lack of national attention, the bill is a small victory that could have implications for future advocacy initiatives and community activism that seek to achieve environmental justice for Native Hawaiians.
The full effects of SB 2386 are yet to be seen, but this paper will attempt to trace the development of the bill and highlight how it has already played a role in alleviating environmental racism on the Waiʻanae Coast. Part I will offer a brief background on the history of Hawaiian land. As with many indigenous groups, Native Hawaiians have an intimate relationship with the environment and many still depend on its sustenance today. Deep spiritual connections add another element to the environmental justice movement for Native Hawaiians since the disproportionate impacts they experience extend to their “racial identity and cultural existence.”[1]
Part II will describe the relevant federal statute and state law that shape land use in Hawaiʻi today. While the overarching state law categorizes the four million acres of land in Hawaiʻi, individual counties retain tremendous autonomy to further zone the land and dictate land use approval processes.[2]
Part III will describe the environmental justice context of the Waiʻanae Coast. A particular zoning regulation in Chapter 21 of the Revised Ordinances of Honolulu has enabled a history of discriminatory landfill siting in close proximity to residences. Some facilities, such as PVT Landfill located in the Nanakuli community on the Waiʻanae Coast, have operated just 750 feet away from homes since the 1980s. Nanakuli is home to the largest population of Native Hawaiians in the state and they end up bearing an “unequal distribution of general societal burdens on this particular area of the island.”[3] The Waiʻanae Coast is also predominately low income, so decisions to expand and continue operating landfills in the backyards of these communities are not met with strong political resistance.
Part IV will explore how local activism has helped to stop the expansion of PVT Landfill. Community involvement played a significant role in persuading local lawmakers to pass the buffer zone amendment through SB 2386 that will increase the minimum distance between waste disposal facilities and residential areas.
Part I. A Brief History of Hawaiian Land
Land is an integral component of Native Hawaiian culture and spiritual life.[4] Hawaiians practice a philosophy of malama ʻaina, which means to care for the land and conserve natural resources to sustain a viable livelihood.[5] Prior to the colonization of the islands, Hawaiians employed a land tenure system consisting of undivided use rights.[6] Hawaiians viewed their land as communal and shared in stark contrast with Western conceptions of privately held property.[7] As foreigners increasingly pervaded the islands throughout the 1800s, the land tenure system was undermined and replaced with a new market of private ownership.[8] Hawaiian land was confiscated, sold, and purchased by those with money.[9] This dramatic alteration in Hawaiians’ relationship with their land fell in step with the suppression of their cultural practices and ways of life.[10]
The most significant instrument that enabled the commodification of Hawaiian land was the Great Mahele (divide). In 1848, King Kamehameha III formally divided the land into two groups: one belonging to himself and the other belonging to 245 chiefs throughout the islands.[11] The king further separated his allocation of 1.6 million acres into his own Crown Lands and land to be controlled by the legislature, known as Government Lands.[12] The chiefs could obtain title to the land set aside for them by filing an appropriate claim which would then be divided amongst the common people who resided on the land.[13] While it was expected that the common people would receive a substantial share of this distribution, the unfamiliar acquisition process resulted in a meager 28,600 acres designated to commoners, less than 1 percent of Hawaiʻi.[14] Westerners living in the islands at the time capitalized on this disproportion and obtained large amounts of acreage from chiefs and Government Lands, controlling most of Hawaiʻi’s land by the end of the nineteenth century.[15]
Through this period, the Kingdom of Hawaiʻi was an internationally recognized sovereign nation that had signed multiple treaties with the U.S. and other countries.[16] However, this did not prevent an American-led coup from illegally overthrowing the Hawaiian monarchy in 1893 and establishing the Republic of Hawaiʻi.[17] In 1898, the U.S. formally accepted the annexation of Hawaiʻi and received approximately 1,800,000 acres of ceded lands.[18] By the time Hawaiʻi was added as the 50th state in 1959, Native Hawaiians had lost control of nearly all of their land.[19]
Part II. Regulatory Background of Hawaiʻi’s Current Land Use System
Land use in Hawaiʻi is considered the most heavily regulated of all the states.[20] The complex regulatory processes that operate today followed the breakdown of the traditional land tenure system and the assimilation of Native Hawaiian land into American possession.[21] Unfortunately, Native Hawaiians do not always benefit from the myriad of land laws and zoning regulations. This is despite the fact that when Hawaiʻi became a state, the U.S. returned between 1.4 and 1.5 million acres of land to the State government to be held in public trust.[22] The land was intended for various public uses and to supplement the Hawaiian Homes Commission Act.[23]
A. The Hawaiian Homes Commission Act
Congress enacted the Hawaiian Homes Commission Act (HHCA) in 1921 which set aside approximately 200,000 acres of the ceded land the U.S. had received in 1898 to be leased as farm lots and residences for Native Hawaiians.[24] The Act was intended to help rehabilitate Native Hawaiians and to “remedy the general ineffectiveness of all previous land distribution systems.”[25] The State of Hawaiʻi agreed to implement the provisions and requirements of the HHCA as part of its admission to the U.S. in 1959.[26] Hawaiʻi created the Department of Hawaiian Home Lands (DHHL) to administer the act and ensure the economic and social welfare of Native Hawaiians receiving homesteads.[27]
Unfortunately, the homestead program has been grossly underfunded and many Native Hawaiians applied for leases decades ago without receiving anything.[28] DHHL reported that there were 28,306 individual applicants on the waiting list for a homestead in 2018.[29] Further, much of the land designated for homesteads is of poor quality since competing interests in the sugarcane industry had lobbied to keep the best agricultural lands for themselves.[30] Native Hawaiians were left with geographically remote and arid lands that were unsuitable for productive development.[31] Over 60 percent of the 200,000 acres granted for the homestead program may never even be utilized at all for the HHCA.[32] This is due in part to the fact that more than one quarter of the land is located in areas with endangered species or protected cultural resources, and much of the acreage lacks vital infrastructure to support homes such as roads or water lines.[33] There are currently 60 Hawaiian Homestead communities throughout the five most populated islands and 9,877 individual homestead leases statewide as of June 2018.[34]
B. Hawaiʻi’s Land Use Law
Hawaiʻi passed its Land Use Law in 1961 which effectively categorized state lands in four different districts: urban, rural, conservation, and agricultural.[35] The law established a Land Use Commission (LUC) to allocate parcels of lands amongst these districts and determine the permitted uses for each.[36] The LUC has the primary responsibility of determining the spatial growth and limitations of urban sprawl throughout the islands, a more direct role than comparable commissions in other states.[37]
In conjunction with the Land Use Law, Hawaiʻi’s individual counties are responsible for further zoning the lands within the urban, rural, and agricultural districts while the state maintains control over the conservation district.[38] Although residential uses other than farm dwellings are technically prohibited in agricultural districts, all four of Hawaiʻi’s counties have permitted large-lot residential subdivisions to be constructed on these lands, including Hawaiian Homesteads.[39] For the urban districts, counties exercise exclusive authority over development through controls such as zoning or subdivision ordinances and building permit laws.[40] The urban district includes all activities or uses permitted by these local regulations.[41] Notably, the Land Use Law allows counties to issue special permits for “certain unusual and reasonable uses” that would otherwise not be permissible in the rural and agricultural districts.[42] For parcels greater than fifteen acres, the special use permits must also be approved by the LUC.[43] The relevant planning commissions consider factors such as whether the use would adversely affect surrounding property, suitability of the land, and whether the use is contrary to statutory objectives when deciding to grant a special use permit.[44]
There are multiple opportunities for public involvement in the county special use permitting process such as party intervention and input at hearings before the planning commission or the state LUC.[45] The County of Honolulu is the only county that requires the petitioner to present its plan to the appropriate neighborhood board before submitting a special use permit application.[46] The petitioner must provide written notice of the presentation to owners of all properties adjoining the proposed project location.[47] The director of Honolulu’s planning and permitting department is also required to hold a public hearing no earlier than 45 days after their acceptance of a completed application.[48]
Hawaiʻi’s Land Use Law is considered to be supplementary to local land use authority within the counties rather than a substitute.[49] A similar dynamic also applies to the interplay between Hawaiʻi’s Land Use Law and the HHCA. The HHCA grants express authorization to the DHHL to lease lands to Native Hawaiians in furtherance of the act’s objectives.[50] Where the department’s homestead plans are inconsistent with designated district uses and associated county zoning, “DHHL may preempt the State Land Use Law and county land use regulations pursuant to the Hawaiian Homes Commission Act section 204.”[51] DHHL’s preemption authority has been confirmed by Hawaiʻi’s attorney general who noted that any zoning ordinance imposing restrictions on homestead lands would be outside the scope of a county’s power.[52]
Even with the preemptive power of the DHHL, the discriminatory enforcement of certain county zoning ordinances coupled with the already unfavorable quality of homestead lands has led to poor living conditions for many Native Hawaiians throughout the state. In particular, one County of Honolulu land use ordinance has enabled the degradation of an area with a high concentration of Native Hawaiian homesteaders. The following section will address this environmental injustice situation and the associated zoning ordinance.
Part III. Discriminatory Landfill Siting on the Waiʻanae Coast
A. The Environmental Justice Context of Nanakuli
Nanakuli, a town situated along Oʻahu’s westward Waiʻanae Coast, is home to the oldest Hawaiian Homestead community on the island.[53] As of 2016, 6,369 homesteaders resided in Nanakuli on a total of 1,319 lots.[54] Seventy-one percent of the 851 acres of available homestead lands on Oʻahu are located on the Waiʻanae Coast, so it is no surprise that Nanakuli has a significant concentration of Native Hawaiians.[55] With approximately 9,000 Native Hawaiian residents total, Nanakuli has the highest per capita Hawaiian population both in the state and in the nation.[56] The Waiʻanae Coast is also inhabited by many other ethnic groups that fall within the federal definition of environmental justice minorities.[57] Further, the area qualifies as low-income with the percentage of residents living below the poverty level at 21.9 percent.[58] This is more than double compared to the poverty level of the rest of Oʻahu.[59]
The overrepresentation of predominantly poor and ethnic minority residents living on the Waiʻanae Coast creates a ripe setting for environmental injustices to occur.[60] Perhaps expectedly, this area of the island bears an unequal distribution of Oʻahu’s waste.[61] Eleven of Oʻahu’s eighteen sewage treatment plants, active landfills, and power plants are located along the Waiʻanae Coast.[62] This is partly due to the fact that the westward side of O’ahu is much drier than other parts of the island.[63] Since rain increases the risk of runoff from open landfills, most waste disposal facilities in the state are built on leeward coasts like Waiʻanae.[64] However, as discussed in the previous section, these second-rate, arid areas were designated for HHCA homesteads, which is now where many Native Hawaiians reside.[65] Vulnerable communities such as these lack the political power and representation to voice their opposition against targeted environmental abuses.[66] The dry conditions coupled with the demographic makeup of the Waiʻanae Coast has enabled the convenient siting of a majority of the island’s solid waste disposal facilities in this area.
There are numerous health and social impacts associated with landfill exposure near residential areas.[67] Numerous studies have revealed a higher risk of developing cancer amongst people living next to landfill sites, as well as a higher risk of birth defects.[68] Waiʻanae Coast residents living in close proximity to the Waimanalo Gulch Landfill, one of the waste disposal facilities in the area, have complained of respiratory problems due to the tons of black coal ash that are carted into the landfill each day.[69] The coal ash is a byproduct from a power generating plant located just five miles away.[70] For example, residents believe that the landfill’s emissions of ash and dust have increased the prevalence of chronic asthma suffered by children in the area.[71] Landfills can also have an adverse impact on housing values due to the potential for odor, smoke, and noise.[72] The socioeconomic impact of landfills long the Waiʻanae Coast is yet another area of concern for local residents.[73]
Native Hawaiians already experience the lowest socioeconomic status and the lowest life expectancy of all Hawaiʻi’s residents,[74] conditions that are exacerbated by the overwhelming siting of waste facilities in communities such as Nanakuli. The undeniable correlation between the disproportionate distribution of waste facilities and the overrepresentation of low-income ethnic groups on the Waiʻanae Coast “validate the existence of environmental racial injustice.”[75] While Waiʻanae Coast residents bear the brunt of impacts from an array of locally unwanted land uses, one particular landfill and the related zoning laws will be examined for purposes of this paper.
B. PVT Landfill and Honolulu’s Zoning Ordinance
The County of Honolulu codified its land use ordinances in Chapter 21 of the Revised Ordinances of Honolulu (ROH). Article 5 Sec. 21-5.680 pertains directly to waste disposal and processing for the island of Oʻahu.[76] The regulation states:
No waste disposal and processing facility shall be located within 1,500 feet of any zoning lot in a county, residential, apartment, apartment mixed use or resort district. When it can be determined that potential impacts will be adequately mitigated due to prevailing winds, terrain, technology or similar considerations, this distance may be reduced, provided that at no time shall the distance be less than 500 feet.[77]
This ordinance mandates a protective buffer zone of 1,500 feet between any landfill and residential area. The facility can minimize the buffer zone to a mere 500 feet if the facility is able to properly mitigate any potentially harmful impacts. Since the ordinance does not detail what would constitute adequate mitigation of potential impacts, that determination is at the discretion of the relevant permitting authorities.[78]
The PVT Landfill is one solid waste facility on Oʻahu that has capitalized on the mitigation exception included within Sec. 21-5.680. The privately-run landfill began operating in 1985 and currently maintains a 750-foot buffer zone from the nearest homes.[79] The landfill is located in the heart of Nanakuli between the Princess Kahanu and Nanakuli Hawaiian Homesteads.[80] PVT claims that its 750-foot buffer is the widest of any other landfill in Hawaiʻi.[81] The company takes steps to mitigate the migration of dust towards homes by spraying water and installing large dust screens along its property line.[82]
Despite these mitigation measures, residents have raised concerns about significant health issues due to coal dust blowing from the landfill, namely impaired respiratory conditions.[83] One gentleman’s testimony given at a Nanakuli Neighborhood Board meeting is representative of the experience of many residents when he described how his home near the PVT Landfill is coated with a dust-like substance each day.[84] The concern over the dust is more than justified since PVT Landfill accepts construction and demolition debris that can be laden with asbestos.[85] It is the only landfill on Oʻahu permitted to accept material from these types of projects and takes in approximately 42 percent of all waste generated on the island.[86] In 2019, PVT Landfill received over two million tons of waste materials such as gypsum drywall (which can break down into hydrogen sulfide gas), wood, furniture, and petroleum-contaminated soil.[87] PVT’s permit allows the landfill to accept up to 2,000 tons of debris per day and up to 500 tons of asbestos-contaminated waste per week.[88]
According to the CDC, Nanakuli residents living in the two census tracts adjacent to the PVT landfill live ten years less than the state average life expectancy of 82.[89] Nanakuli residents have high instances of illnesses commonly associated with living in close proximity to a landfill such as lung cancer and gastrointestinal issues.[90] They also blame PVT for the high rates of asthma suffered by their children.[91] Although several human health risk assessments indicate that PVT’s operations do not pose a significant risk to surrounding communities,[92] many worry that the landfill is exacerbating the public health crisis Nanakuli has been battling for decades.[93] The human health studies completed in recent years may not be an accurate barometer of the safety of the PVT landfill in light of the fact that “long-term health effects of exposure to substances present in the waste, or produced at waste disposal facilities are more difficult to measure.”[94]
Nanakuli residents are tired of bearing the externalities of an industry that primarily benefits the urban areas of Oʻahu.[95] Aside from the health impacts, residents must also endure the odors and noise generated by the landfill operations on a daily basis.[96] Community members have vehemently opposed PVT Landfill and have called for its closure for years.[97] Residents were also concerned about the potential for the landfill’s expansion, a fear that was confirmed in 2019 when PVT announced plans to expand its landfill across the street.[98
C. Senate Bill 2386: the Roadblock to PVT’s Expansion Plan
PVT put forth a proposal to expand its operations from its current 160 acres to a 180-acre parcel across the street.[99] The facility has an estimated five years of remaining capacity and needs to expand in order to continue accommodating the island’s construction and demolition waste.[100] PVT has also stressed that its designated to receive debris from storm damage, so cleanup after a major hurricane would be problematic if the landfill was unable to expand.[101] The company says the landfill is running out of space despite the fact that it recycles 80 percent of the materials it receives.[102] PVT hopes to begin using the expansion parcel within the next four years and plans to double the amount of recycling.[103]
Although PVT already owns the land intended for the expansion, the company had to submit an application to the Honolulu Planning Commission for the relocation.[104] PVT needed a special use permit since the intended use is not ordinarily permissible in the county-zoned agricultural district.[105] Further, the State LUC would need to review the city’s decision since the project exceeds the 15-acre threshold.[106] PVT officials assure the commission and public that the new landfill will comply with all relevant permits and approvals, especially since the expansion will maintain the same 750-foot buffer zone in accordance with Sec. 21-5.680.[107] However, Hawaiʻi’s legislature passed a bill in July 2020 that mandates a half-mile buffer zone between waste facilities and residences, significantly disrupting PVT’s expansion plans.[108]
Lawmakers first introduced SB 2386 to the State Legislature in January 2020.[109] Hawaiʻi senators passed the bill unanimously in early March 2020, but the onset of the coronavirus delayed the measure in the State House.[110] In July, the House passed an amended version of the bill with a 45-6 vote, followed by a 24-1 vote in the Senate.[111] SB 2386 was then enrolled to Hawaiʻi’s governor in August 2020 who would have until the end of the month to notify lawmakers of his intent to veto, otherwise allowing the bill to become law with or without his signature.[112] The bill was not on the governor’s list of intended vetoes and successfully became law on September 15, 2020.[113]
SB 2386 amends a particular subsection of the Hawaiʻi Revised Statutes (HRS) relating to waste management. The amendment reads in pertinent part that:
No person, including the State or any county, shall construct, modify, or expand a waste or disposal facility including a municipal solid waste landfill unit, any component of a municipal solid waste landfill unit, a construction and demolition landfill unit, or any component of a construction and demolition landfill unit without first establishing a buffer zone of no less than one-half mile around the waste or disposal facility.[114]
Buffer zone is defined in the subsection as the distance between the edge of the waste or waste activity and the closest residential, school, or hospital property line.[115] The amendment states that the new subsection will not apply to the continued operation of any existing waste or disposal facility.[116] However, the buffer zone mandate would be triggered if the facility’s operation required physical expansion or new or additional permitting.[117] For a company such as PVT seeking to expand its operations, the new amendment has the potential to significantly alter the feasibility of those plans.[118]
With the passage of SB 2386, PVT stated plans to withdraw its application to the Honolulu Planning Commission to relocate its landfill.[119] PVT would not be able to reapply for relocation for an entire year after withdrawing its application.[120] Company officials said that if it was unable to expand the landfill, it would need to increase disposal rates and limit the amount of waste it accepts.[121] Eventually, PVT landfill may be forced to cease its operations.[122] The closure of PVT could significantly disrupt construction projects of all sizes since it is the only designated construction and demolition landfill on the island.[123] PVT also cited concerns regarding an increase in illegal dumping and a prevention of future construction projects due to the bill.[124]
Although PVT described numerous ramifications of SB 2386 on the viability of Oʻahu’s construction projects, a report from the Mayor’s Advisory Committee on Landfill Site Selection (MACLSS) in 2012 identified eleven other suitable sites for landfills.[125] MACLSS consisted of a panel of nine community members and technical consultants who conducted a comprehensive landfill site study on O’ahu.[126] The committee developed community-based criteria that would be most important from a community’s perspective in the siting of a proposed landfill, such as effects on local roads and traffic.[127] Significantly, all eleven sites described in the report would allow for at least a half-mile buffer zone and none of the potential sites were located in Nanakuli.[128]
SB 2386 may have potential repercussions for the construction industry. Regardless, the prevention of PVT’s expansion due to the new buffer zone law marks a considerable success for achieving environmental justice in Nanakuli. The next section will delve more deeply into the passage of SB 2386 and its implications for the Native Hawaiian environmental justice movement as a whole.
Part IV. A Step Toward Achieving Environmental Justice on the Waiʻanae Coast
A. A Closer Look at the Passage of SB 2386
Until the enactment of SB 2386, Hawaiʻi had no state-wide buffer zone minimum.[129] Consequently, Honolulu County was able to enforce a much smaller buffer zone of 1,500 feet (or 500 feet with mitigation) through its local ordinance.[130] SB 2386 is a noteworthy piece of legislation for its implied recognition that communities living in close proximity to waste facilities needed a wider berth of protection. Then Hawaiʻi Senator Kai Kahele, who introduced the bill, believes the new buffer zone “could help to further the cause of environmental justice in rural communities with landfills, such as the Waianae Coast.”[131] Senator Kahele’s high hopes are also shared by Nanakuli residents and other supporters of the bill.[132]
SB 2386 was introduced as part of a Senate Native Hawaiian Caucus package.[133] The bill garnered testimonies of support from prominent entities such as the Office of Hawaiian Affairs, the Sierra Club of Hawaiʻi, the Association of Hawaiian Civic Clubs, and several organized labor organizations such as the Hawaiʻi State Teachers Association and United Public Workers.[134] Many of the testimonies highlighted the alarming health disparities amongst Nanakuli residents and the need to better protect them by establishing a minimum distance between waste facilities and homes.[135] The testimonies represent the understanding that “[n]o community should suffer the negative health impacts and decrease in quality of life from a waste or disposal facility, including a landfill.”[136] The collective sentiment of supporters urged lawmakers to ensure that future landfills would not be in anyone’s backyard, let alone Native Hawaiian communities.
Those testifying in opposition included PVT Landfill, the Building Industry Association, and multiple demolition companies on O’ahu.[137] PVT emphasized its critical role in supporting the construction industry and how the enactment of SB 2386 would not only preclude PVT’s much needed expansion, but eventually force the landfill to shut down.[138] This would negatively impact developers and contractors who rely on PVT to dispose of their construction and demolition debris.[139] Government officials representing the City and County of Honolulu, Maui County, and Kauai County also opposed the bill.[140] Maui County cited the economic difficulties that would be spurred by SB 2386 such as spending millions of dollars on property acquisition in order to expand its landfill facilities.[141] The counties point out that buffer zones are already heavily regulated under local land use ordinances and that a mandatory half-mile buffer would come at an “exorbitant expense” to taxpayers.[142]
The extensive testimonies submitted by advocates of Native Hawaiian environmental justice weighed strongly in support of SB 2386 which passed through the House and the Senate with very few opposing votes.[143] The bill became law despite industry concerns that projects on the island could be delayed, including the construction of Honolulu’s light rail transportation system.[144] Interestingly, several of the testimonies mentioned Hawaiʻi’s constitutional provision that guarantees a right to a “clean and healthful environment.”[145] While the interpretation of this constitutional right has been largely limited to procedural issues,[146] it seems to have been an influencing factor in the development and ultimate acceptance of SB 2386. Senator Kahele also highlighted the importance of the right to a healthy environment when describing his aspirations for the new buffer zone law.[147]
B. The Role of Community Activism
While SB 2386 was still pending in Hawaiʻi’s Legislature, Nanakuli residents were protesting the expansion of the PVT Landfill. In July 2019, members of the Nanakuli-Maʻili Neighborhood Board received information about the project’s potential environmental impacts.[148] On September 4, 2019, the board held a special meeting to hear community input and determine its position on PVT’s proposed expansion.[149] Advocates from the Association of Hawaiian Civic Clubs had submitted a petition to the board in opposition of the landfill relocation with over 5,500 signatures.[150] The following day, the Chair of the Nanakuli-Maʻili Neighborhood Board sent a letter to the Honolulu director of the Department of Planning and Permitting (DPP) who would make the final decision on PVT’s special use permit application.[151] The letter detailed how the board supports PVT’s recycling efforts, but ultimately passed a motion opposing the request for relocation.[152]
These neighborhood board meetings have been important outlets for Nanakuli residents to voice their concerns. Meetings have been attended by Hawaiian Civic Clubs, elderly residents fondly refered to as kupuna, and hundreds of other community members.[153] At one meeting regarding the PVT landfill, Nanakuli residents expressed how “they are tired of being the island’s dumping ground.”[154] Pursuant to Article 2 § 21-2.40-2(b)(2) of the Honolulu land use ordinances discussed in Part II, PVT was required to alert the neighborhood board in Nanakuli of its plan to expand the landfill.[155] This is one aspect of the county zoning laws that has played a crucial role in keeping the relevant communities informed of projects that could potentially harm their health. PVT withdrew its special use permit application before the requisite public hearing was scheduled by the DPP for September 16, 2020.[156]
Community activists were also pushing for the County of Honolulu to amend its own land use ordinance which still only requires a minimum 500-foot buffer zone for O’ahu’s waste disposal and processing facilities.[157] The Association of Hawaiian Civic Clubs adopted Resolution 20-119 which had been introduced by a Honolulu County Councilmember on May 13, 2020.[158] The resolution proposes an amendment to Sec. 21-5.680 of the ROH and advances the same buffer zone minimum of a half-mile as now mandated by SB 2386.[159] The resolution expressly recognizes that increasing the required minimum distance between residences and waste disposal facilities would mitigate the negative impacts of residing near those types of facilities.[160] Unfortunately, Resolution 20-119 was stalled after Honolulu’s City Council’s Zoning, Planning and Housing Committee removed the action from its agenda at the end of May.[161]
Waiʻanae Coast residents have sought relief from discriminatory landfill siting for years through community organizing.[162] Grassroots efforts have been essential due to the lack of action on behalf of elected officials and the reoccurring failure of proposed measures that would have granted relief.[163] In many ways, SB 2386 represents a long-awaited recognition that stricter regulations were necessary to protect the residents of the Waiʻanae Coast from the harmful impacts of waste disposal facilities. The Sierra Club of Hawaiʻi described SB 2386 as “a modest yet necessary step toward environmental justice.”[164] While complete environmental justice is still long overdue, Nanakuli community members have finally achieved one significant success through the utilization of public testimony processes.
Part V. Conclusion
For Native Hawaiians, environmental justice involves more than addressing discriminatory institutions and degraded health.[165] Native Hawaiian environmental justice should achieve the “reclamation and restoration of land and culture” through the “integrat[ion] of community history, political identity, and socioeconomic and cultural needs.”[166] Since environmental racism dynamics differ for indigenous groups, typical environmental justice remedies should be reworked to meet specific needs.[167] This concept of “racializing” environmental justice acknowledges the history of harm that can be traced back through Native Hawaiian land dispossession and cultural prohibitions.[168] These deeply-rooted discriminations add an additional layer to the objectives of the Native Hawaiian environmental justice movement.
The Waiʻanae Coast is still home to environmentally damaging facilities that impact the health of its low-income, minority population.[169] While SB 2386 does effectively prevent the expansion of waste disposal facilities such as PVT Landfill without an adequate buffer zone, the “potential for further mistreatment and the approval of additional waste facilities without legal means to challenge or prevent it” is an alarming reality.[170] Nanakuli residents were able to utilize procedural avenues that allowed them to testify in opposition of PVT’s expansion and urge the State of Hawaiʻi to enact SB 2386. These tools empowered the Nanakuli community and influenced the passage of a statewide law that will now protect other Native Hawaiians who also experience the same inequitable distribution of societal burdens throughout the state. As the struggle for Native Hawaiian environmental justice on the Waiʻanae Coast endures, activists and community members can continue to take advantage of preexisting public processes that allow their voices to be heard.
Endnotes
[1] Eric K. Yamamoto & Jen-L W. Lyman, Racializing Environmental Justice, 72 U. Colo. L. Rev. 311, 356 (2001).
[2] G. Kem Lowry Jr., Evaluating State Land Use Control: Perspectives and Hawaii Case Study, 18 Urb. L. Ann. 85, 93–94 (1980).
[3] Chasid M. Sapolu, Dumping on the Wai’anae Coast: Achieving Environmental Justice through the Hawai’i State Constitution, 11 APLPJ 204, 219 (2009).
[4] Melody Kapilialoha MacKenzie, Susan K. Serrano & Koalani Laura Kaulukukui, Environmental Justice for Indigenous Hawaiians: Reclaiming Land and Resources, 21 Nat. Resources & Entv’t 37, 37 (2007).
[5] Mililani B. Trask, Historical and Contemporary Hawaiian Self-Determination: A Native Hawaiian Perspective, 8 Ariz. J. Int’l & Comp. L. 77, 78 (1991).
[6] Id.
[7] Melody Kapilialoha MacKenzie, Susan K. Serrano & Koalani Laura Kaulukukui, Environmental Justice for Indigenous Hawaiians: Reclaiming Land and Resources, 21 Nat. Resources & Env’t 37, 37 (2007)
[8] Trask, supra note 5, at 78.
[9] Id.
[10] MacKenzie et al., supra note 7, at 37.
[11] David L. Callies, Regulating Paradise: Land Use Controls in Hawai’i 2 (2d ed. 2010).
[12] Id.
[13] Id. at 2–3.
[14] John M. Van Dyke, The Political Status of the Native Hawaiian People, 17 Yale L. & Pol’y Rev. 95, 102 (1998); Callies, supra note 11, at 4; Trask, supra note 5, at 78.
[15] Dyke, supra note 14.
[16] Id.
[17] Id.
[18] Dyke, supra note 14, at 103; Callies, supra note 11, at 3.
[19] Charles F. Wilkinson, Land Tenure in the Pacific: The Context for Native Hawaiian Land Rights, 64 Wash. L. Rev. 227, 230 (1989).
[20] Callies, supra note 11, at 1.
[21] Id. at 2.
[22] Trask, supra note 5, at 81.
[23] Id.
[24] Dyke, supra note 14, at 104.
[25] Mark A. Inciong, The Lost Trust: Native Hawaiian Beneficiaries under the Hawaiian Homes Commission Act, 8 Ariz. J. Int’l & Comp. L. 171, 175 (1991).
[26] Id. at 177.
[27] Id. at 179.
[28] Dyke, supra note 14, at 104; Inciong, supra note 22, at 171.
[29] Dep. Of Hawaiian Home Lands, Fiscal Year 2017-2018 Annual Report 58 (2019), https://dhhl.hawaii.gov/wp-content/uploads/2019/10/2018-DHHL-AnnualReport-ICROv3.pdf [hereinafter DHHL Annual Report].
[30] Dyke, supra note 14, at 104; Inciong, supra note 22, at 179.
[31] Lana Sue I. Ka’opua et al., Decolonizing Knowledge Development In Health Research: Cultural Safety Through The Lens of Hawaiian Homestead Residents, 5 J. of Indigenous Soc. Dev. 20, 24 (2017).
[32] Blaze Lovell, The Problem With Hawaiian Homestead Land? Much of it Can’t be Developed, Honolulu Civil Beat (June 12, 2019), https://www.civilbeat.org/2019/06/the-problem-with-hawaiian-homestead-land-much-of-it-cant-be-developed/.
[33] Id.
[34] Ka’opua, supra note 31, at 24; DHHL Annual Report, supra note 29, at 63.
[35] Lowry, supra note 2, at 94.
[36] Id.
[37] Id. at 96.
[38] Hawai’i Rural Dev. Council, Introduction to Hawai’i’s Land Classification and Management System 16 (2015), http://www.oha.org/wp-content/uploads/HRDC-LUTPManual_PRF6_FINAL.pdf [hereinafter HRDC Manual].
[39] Callies, supra note 11, at 22.
[40] Lowry, supra note 2, at 98.
[41] Id. at 95.
[42] HRDC Manual, supra note 38, at 16; Callies, supra note 11, at 25.
[43] HRDC Manual, supra note 38, at 16. Callies, supra note 11, at 25.
[44] Callies, supra note 11, at 25.
[45] HRDC Manual, supra note 38, at 56.
[46] Id.
[47] Honolulu Rev. Ord. Art 2. § 21-2.40-2(b)(2) (1990).
[48] Id. § 21-2.40-2(c)(6).
[49] Lowry, supra note 2, at 97–98.
[50] Callies, supra note 11, at 194.
[51] Dep. of Hawaiian Home Lands, Nanakuli Regional Plan 2018, at 26 (2018), https://dhhl.hawaii.gov/wp-content/uploads/2018/11/Nanakuli-RP2018-Final.pdf [hereinafter Nanakuli Regional Plan].
[52] Callies, supra note 11, at 194.
[53] Nanakuli Regional Plan, supra note 51, at 21.
[54] Id. at 25.
[55] Id.
[56] Anthony Makana Paris & Kamuela Werner, Not in Anyone’s Backyard, Ka Wai Ola (Apr. 30, 2020) https://kawaiola.news/aina/not-in-anyones-backyard/.
[57] Sapolu, supra note 3, at 220.
[58] Id.
[59] Id.
[60] Id. at 221.
[61] Kerry Kumabe, The Public’s Right of Participation: Attaining Environmental Justice in Hawai’i through Deliberative Decisionmaking, 17 Asian Am. L.J. 181, 192 (2010).
[62] Id.
[63] Claire Caulfield, How is Oahu’s Trash Impacting the Waianae Coast?, Honolulu Civil Beat (Aug. 11, 2020), https://www.civilbeat.org/2020/08/how-is-oahus-trash-impacting-the-waianae-coast/.
[64] Id.
[65] See infra Part II.A.
[66] Sapolu, supra note 3, at 227; Yamamoto & Lyman, supra note 1, at 318.
[67] Maheshi Danthurebandara et al., Environmental and Socio-Economic Impacts of Landfills, Linnaeus Eco-Tech 40, 47 (2012) https://www.researchgate.net/profile/Dirk_Nelen/publication/278738702_Environmental_and_socio-economic_impacts_of_landfills/links/58ff795345851565029f290a/Environmental-and-socio-economic-impacts-of-landfills.pdf.
[68] Id.
[69] Sapolu, supra note 3, at 223.
[70] Id. at 222.
[71] Kumabe, supra note 61, at 194.
[72] Danthurebandara et al., supra note 67.
[73] See Caulfield, supra note 63 (quoting a Nanakuli resident’s concern that no one wants to live next to a landfill).
[74] Trask, supra note 5, at 82; see Sapolu, supra note 3, at 223 (noting the “relationship between an incease in negative health effects and the pollution caused by hazardous waste facilities”).
[75] Sapolu, supra note 3, at 220–21.
[76] Honolulu Rev. Ord. Art. 5 § 21-5.680 (1990).
[77] Id.
[78] See Honolulu Rev. Ord. Art. 2 § 21-2.0 (relating to administrative procedures of land use permit approvals).
[79] Sapolu, supra note 3, at 221; Andrew Gomes, State Legislature Sides with Nanakuli Landfill Opponents, Honolulu Star-Advertiser (July 29, 2020), https://www.staradvertiser.com/2020/07/29/hawaii-news/state-legislature-sides-with-nanakuli-landfill-opponents/#story-section.
[80] Nanakuli Regional Plan, supra note 51, at 21.
[81] Gomes, supra note 79.
[82] Caulfield, supra note 63.
[83] Sapolu, supra note 3, at 224.
[84] Id. at 206.
[85] Paris & Werner, supra note 56.
[86] Gomes, supra note 79; Paris & Werner, supra note 56.
[87] Paris & Werner, supra note 56; Kumabe, supra note 61, at 192.
[88] Caulfield, supra note 63.
[89] Paris & Werner, supra note 56.
[90] Id.
[91] Kumabe, supra note 61, at 192.
[92] Caulfield, supra note 63.
[93] Paris & Werner, supra note 56.
[94] L. Giusti, A Review of Waste Management Practices and Their Impact on Human Health, 29 Waste Management 2227, 2228 (2009) http://sgpwe.izt.uam.mx/files/users/uami/citla/Lecturas_temas_selectos/review_of_waste_mngment_practices_and_human_health.pdf.
[95] Caulfield, supra note 63.
[96] Nanakuli Regional Plan, supra note 51, at 27.
[97] Kumabe, supra note 61, at 192.
[98] Kimberlee Speakman, Public Meeting to Discuss Nanakuli Landfill Expansion Plans Wednesday Night, KHON2 (Sept. 3, 2019), https://www.khon2.com/news/public-meeting-to-discuss-nanakuli-landfill-expansion-plans-wednesday-night/; see Sapolu, supra note 3, at 224 (“Community concerns include PVT becoming the last resort for the island’s waste problems, leading to an expansion of the current PVT site, and a permit to receive the municipal solid waste on top of the industrial waste already being dumped there.”).
[99] Caulfield, supra note 63.
[100] Gomes, supra note 79.
[101] Id.
[102] Speakman, supra note 98; Gomes, supra note 79.
[103] Chelsea Davis, Nanakuli Residents Are Fed Up Over Proposed Landfill Expansion, Hawaii News Now (July 16, 2019), https://www.hawaiinewsnow.com/2019/07/17/nanakuli-residents-fed-up-over-proposed-landfill-expansion/.
[104] Caulfield, supra note 63; Janis L. Magin, PVT Land to Withdraw Application For New Oahu Construction Landfill, Pacific Bus. News (Sept. 15, 2020), https://www.bizjournals.com/pacific/news/2020/09/15/pvt-land-withdraw-application-new-oahu-landfill.html.
[105] See infra Part II.B.
[106] Id.
[107] Davis, supra note 103; Gomes, supra note 79.
[108] Gomes, supra note 79.
[109] Paris & Werner, supra note 56.
[110] Gomes, supra note 79.
[111] Id.
[112] Id.
[113] Magin, supra note 104.
[114] S.B. 2386 H.D. 2, 30th Leg. (Haw. 2020).
[115] Id.
[116] Id.
[117] Id.
[118] Blaze Lovell, Hawaii Lawmakers Salvage Bills Despite Pandemic, Honolulu Civil Beat (July 10, 2020), https://www.civilbeat.org/2020/07/hawaii-lawmakers-salvage-bills-despite-pandemic/.
[119] Magin, supra note 104.
[120] Id.
[121] Magin, supra note 104; Gomes, supra note 79.
[122] Caulfield, supra note 63; Lovell, supra note 118.
[123] Magin, supra note 104; Gomes, supra note 79.
[124] Magin, supra note 104; Gomes, supra note 79.
[125] Paris & Werner, supra note 56.
[126] Id.
[127] Dep’t of Env’t Serv., Report of the Mayor’s Advisory Committee on Landfill Site Selection 1-1, 1-5 (Sept. 2012), http://www.opala.org/solid_waste/pdfs/MACLSS%20REPORT%20FINAL%20092512.pdf.
[128] Paris & Werner, supra note 56.
[129] Id.
[130] See Honolulu Rev. Ord. Art. 5 § 21-5.68.
[131] Lovell, supra note 118.
[132] See Paris & Werner, supra note 56; Gomes, supra note 79; Ferd Lewis, Bill Could Impact Aloha Stadium Demolition, Landfill Operator Says, Honolulu Star Advertiser (June 14, 2020), https://www.staradvertiser.com/2020/06/14/hawaii-news/bill-could-impact-stadium-demolition-landfill-operator-says/?HSA=18828e0774b5640881d9b804f803912b3612a748&fbclid=IwAR3Bi-rt_PPo2GB80ErSIPxAl4wuxiRkPSkqPFvONoT8JbZPtwJCHUf9s8Q.
[133] Lewis, supra note 132.
[134] Gomes, supra note 79; Paris & Werner, supra note 56.
[135] See Hearing on S.B. 2386 S.D. 2 H.D. 2, Before the H. Comm. On Fin., Leg. 30th (Haw. 2020) (statements of Democratic Party of Hawaii Labor Caucus and Prince Kuhio Hawaiian Civic Club) [hereinafter Hearing on S.B. 2386 Testimonies].
[136] Hearing on S.B. 2386 Testimonies (statement of O’ahu Council on the Association of Hawaiian Civic Clubs).
[137] See Hearing on S.B. 2386 Testimonies (statements of PVT Landfill and the Building Industry Association).
[138] Hearing on S.B. 2386 Testimonies (statement of PVT Landfill).
[139] Id.
[140] Gomes, supra note 79.
[141] Id.
[142] Hearing on S.B. 2386 Testimonies (statement of Maui County).
[143] Gomes, supra note 79.
[144] Id.
[145] Haw. Const. art. XI, § 9; Lovell, supra note 118. See Hearing on S.B. 2386 Testimonies (statements in support).
[146] Sapolu, supra note 3, at 235.
[147] Lovell, supra note 118.
[148] Davis, supra note 103.
[149] Paris & Werner, supra note 56.
[150] Id.
[151] Special Use Permit (SUP) Application File No. 2020/SUP-4 for the Relocation of the PVT Integrated Solid Waste Management Facility.
[152] Id.
[153] Paris & Werner, supra note 56.
[154] Davis, supra note 103.
[155] See infra Part II.B; see also Honolulu Rev. Ord. Art 2. § 21-2.40-2(b)(2).
[156] Magin, supra note 104.
[157] Paris & Werner, supra note 56.
[158] Paris & Werner, supra note 56; Resolution 20-119 – Landfill “Buffer Zones”, Sierra Club O’ahu Group (June 17, 2019), https://www.sierracluboahu.org/councilwatch-blog/resolution-20-119.
[159] Res. 20-119, City and Cty. of Honolulu (Haw. 2020).
[160] Id.
[161] Janis L. Magin, Honolulu Council Committee Postpones Action on to Triple Landfill Distance, Pacific Bus. News (May 22, 2020), https://www.bizjournals.com/pacific/news/2020/05/22/honolulu-committee-postpones-landfill-distance.html.
[162] Sapolu, supra note 3, at 227.
[163] Id. at 225.
[164] Carly Rizzuto, Environmental Racism and the Harms of Coal Ash, Sierra Club O’ahu Group (July 21, 2020), https://www.sierracluboahu.org/councilwatch-blog/the-harms-of-coal-ash-as-reason-to-support-a-landfill-buffer-zone.
[165] MacKenzie et al., supra note 7, at 38.
[166] Id.
[167] Yamamoto & Lyman, supra note 1, at 347.
[168] Id.
[169] Sapolu, supra note 3, at 244.
[170] Id.