Innovation or Degradation?: An Analysis of Hawaiʻi s Cultural Impact Assessment Process as a Vehicle of Environmental Justice for Kānaka Maoli

Transcription

1 Innovation or Degradation?: An Analysis of Hawaiʻi s Cultural Impact Assessment Process as a Vehicle of Environmental Justice for Kānaka Maoli Elena Bryant * INTRODUCTION I. PROVIDING A FRAMEWORK: ENVIRONMENTAL JUSTICE FOR KĀNAKA MAOLI COMMUNITIES A. Incorporating Environmental Justice into Hawaiʻi s EIS Process: Racializing Environmental Justice B. Defining the Injustice C. The Enactment of Natural and Cultural Resource Protections as a Mechanism for Restorative Justice for Kānaka Maoli II. THE CULTURAL AND HISTORICAL SIGNIFICANCE OF WIND AND WATER TO KĀNAKA MAOLI A. Kumulipo: Kānaka Maoli s Source of Origin B. I paʻa i ke Kalo ʻaʻole ʻoe e puka; If it had ended with the Kalo you would not be here C. Cultural Significance of the Wind D. Cultural Significance of the Sea III. THE PUSH TO GO GREEN : HAWAIʻI S INTERISLAND WIND PROJECT A. Hawaiʻi Clean Energy Initiative: Moving Hawaiʻi Towards Energy Self-sufficiency B. Hawaiʻi Energy Agreement C. Breaking Barriers, Linking Islands: The Proposal for a Costly Interisland Undersea Cable Purpose, Objectives & Goals of the Project Routes of Contention: Linking the islands of Oʻahu, Maui, Molokaʻi & Lānaʻi) D. Proposed Permitting & Approvals Processes: Working Through the HEIS Process IV. NĀNĀ I KE KUMU : LOOKING AT THE PAST TO ADDRESS THE * Juris Doctor 2011, William S. Richardson School of Law; B.A. University of Hawaiʻi at Mānoa, I would like to dedicate this article to my son, Shane Kalei, so that it may inspire him to preserve and protect his cultural heritage and lands, for we do not inherit the Earth from our parents, rather, we borrow it from our children. Special thanks to my mother, Leona, and my grandmother Lorraine, for providing me with the foundation, opportunity, and drive to always kūlia i ka nuʻu ( strive for the summit ). Mahalo nui to D. Kapuaʻala Sproat for her invaluable guidance, inspiration and support; and to C.J. Richardson without his vision, I would not be a lawyer today. Lastly, thank you to Terran Christopher for his enduring support and encouragement.

2 2011] Bryant 231 FUTURE A. Setting the Tone for Environmental Review: The National Environmental Policy Act B. Hawaiʻi s Stance on Environmental Protections: The Hawaiʻi Environmental Policy Act HEPA s Environmental Review Process Protecting Natural and Cultural Resources at the State Level V. EMPLOYING THE FRAMEWORK TO ANALYZE THE INTERISLAND UNDERSEA CABLE PROJECT A. The Environmental Injustice : Innovative Change vs. Continued Degradation Interisland Undersea Cable: Innovation or Degradation? The Cultural Perspective: Understanding Specific Environmental Justice Problems from a Maoli Perspective289 B. The Rights Claim: the Cultural Impact Assessment Process as a Foundation for Restorative Justice for Kānaka Maoli C. Possible Justice Prescriptions: Alternatives and Recommendations for Hawaiʻi s EIS Process VI. CONCLUSION INTRODUCTION He aliʻi ka ʻāina; he kauwā ke Kānaka. The land is chief; man is its servant. 1 This ʻōlelo noʻeau describes the relationship that Kānaka Maoli 2 possess with respect to the ʻāina, or lands on which they live. This metaphor defines the Kānaka Maoli relationship to the ʻāina and is embodied in the modern concepts of mālama ʻāina 3 and aloha ʻāina. 4 The 1 MARY KAWENA PŪKUʻI, ʻŌLELO NOʻEAU: POETICAL SAYINGS 62 (1983). HAWAIIAN PROVERBS AND 2 As used in this paper, Kānaka Maoli refers to the indigenous people of Hawaiʻi, who can trace their ancestry to the people inhabiting the Hawaiian Islands prior to 1778, of pure or part blood quantum. See HAW. REV. STAT (2009). 3 Mālama ʻāina is defined as serving and caring for the Land. LILIKALĀ KAMEʻELEIHIWA, NATIVE LAND AND FOREIGN DESIRES: PEHEA LĀ E PONO AI? 25 (1992). 4 Aloha ʻāina is defined as love of the Land. Id. at 25. According to tradition, the ʻāina is the elder sibling and progenitor of the Hawaiian race. Id. at There existed a reciprocal duty between the kānaka and the ʻāina in which the people would care for the land and in return the land would provide for the kānaka. See infra Part II.B, for more information.

3 232 Asian-Pacific Law & Policy Journal [Vol. 13:1 land has no need for kānaka, 5 but kānaka need the land and work it to sustain their families. 6 As currently applied, this relationship highlights the importance of maintaining a healthy environment to sustain a healthy society. In ancient times, Hawaiʻi was completely self-sufficient and the traditional land tenure system regulated resource management. 7 New perceptions regarding the responsibilities of the human population and appropriate relationships to the land have forever altered the way in which Kānaka Maoli identify with their homelands. 8 Although Hawaiʻi may never return to complete self-sufficiency, the State is capable of becoming energy self-sufficient. 9 Hawaiʻi possesses an abundance of natural resources such as wind, ocean, solar, and geothermal, which could be harvested to allow the State to reduce its reliance on imported fossil fuels and become energy self-sufficient. 10 In 2008, the State of Hawaiʻi and the U.S. Department of Energy recognized Hawaiʻi s potential to be a model of energy self-sufficiency for the rest of the world, and entered into the Hawaiʻi Clean Energy Initiative ( Initiative ) a partnership bringing together stakeholders committed to leading Hawaiʻi to energy independence. 11 To achieve this goal, the Initiative is working to develop Hawaiʻi s indigenous, sustainable sources of energy. 12 Proponents of renewable energy development in Hawaiʻi are looking at the Interisland Wind Project as a major contributor to Hawaiʻi s 5 Kānaka is the plural form of kanaka, which is defined as a human being, or man. MARY KAWENA PŪKUʻI & SAMUEL H. ELBERT, HAWAIIAN DICTIONARY 127 (1986). 6 PŪKUʻI, supra note 1, at See JONATHAN KAY KAMAKAWIWOʻOLE OSORIO, DISMEMBERING LĀHUI: A HISTORY OF THE HAWAIIAN NATION TO (2002). (2008). 8 CARLOS ANDRADE, HĀʻENA: THROUGH THE EYES OF THE ANCESTORS 69 9 Interview with Henry Curtis, Exec. Dir., Life of the Land (Hawaiʻi), in Honolulu, Haw. (Jan. 11, 2010). 10 Id.; See Hawaiʻi Clean Energy Initiative, Renewable Energy, (last visited Oct. 21, 2011) [hereinafter Renewable Energy]. 11 Hawaiʻi Clean Energy Initiative, About the Hawaiʻi Clean Energy Initiative, (last visited Mar. 1, 2010). 12 See Renewable Energy, supra note 10.

4 2011] Bryant 233 energy independence. 13 The Interisland Wind Project, as originally conceived, proposed to send up to 400 megawatts of renewable wind energy from the islands of Molokaʻi and Lānaʻi via an undersea electrical transmission cable to Oʻahu. 14 It is the first renewable energy development proposal stemming from the comprehensive energy agreement between the State of Hawaiʻi and the Hawaiian Electric Companies, 15 with the goal of helping the State move away from dependence on fossil fuels for electricity and ground transportation. 16 Although the scope of the Interisland Wind Project has since been modified to include other forms of renewable energy technologies, the heart of the Big Wind project remains the undersea transmission cable See Press Release, Governor Lingle s Executive Chambers, Governor Lingle Announces Agreement to Advance Big Wind Projects (Mar. 17, 2009) [hereinafter Lingle Announces Agreement] available at 14 What is the Interisland Wind and Cable Project, Interisland Wind, (last visited Jan. 28, 2010). The Interisland Wind Project proposal has undergone numerous amendments. Interview with Ryan Hurley, Wind Energy Specialist, Hawaiʻi State Energy Office, in Honolulu, Haw. (Oct. 29, 2011). As originally proposed, the Interisland Wind Project proposal included three major components: (1) the wind farms located on the islands of Molokaʻi and Lānaʻi; (2) the undersea cable connecting the islands of Oʻahu, Maui, Molokaʻi, and Lānaʻi; and (3) the additional transmission lines and infrastructure that will be needed on each island to convert and connect the wind energy to the existing electrical grids. For more information see infra Part III. 15 Hawaiian Electric Company, Inc. ( HECO ), and its subsidiaries, Maui Electric Company, Ltd. ( MECO ) and Hawaii Electric Light Company, Inc. ( HELCO ), serve ninety-five percent of the State s residents on the islands of Oʻahu, Maui, Hawaiʻi Island, Lānaʻi, and Molokaʻi. HECO, About HECO, (last visited Mar. 26, 2010) [hereinafter About HECO]. 16 See Hawaiʻi Clean Energy Initiative, Hawaiʻi Energy Policy, (last visited Mar. 1, 2010). 17 Using federal stimulus funds, AECOM was hired by the Department of Business, Economic Development & Tourism ( DBEDT ) to write a programmatic environmental impact statement ( PEIS ) for the Wind project. Henry Curtis, Big Wind hits road blocks from State Procurement Office, Public Utilities Commission & the Association of Hawaiian Civic Clubs, available at (last visited Nov. 23, 2011). After DBEDT complied and sorted through comments from more than 250 individuals and entities, it became apparent that the request from the public for DBEDT to study additional renewable energy technologies as part of the programmatic EIS was an overwhelmingly common theme. Id. As such, DBEDT filed an Amendment with the State Procurement Office requesting the additional scope of services analyzed within the Big Wind project to include solar, photovoltaic, and geothermal alternatives. Id. The author notes that the larger Interisland Wind Project

5 234 Asian-Pacific Law & Policy Journal [Vol. 13:1 The Interisland Wind Project proposes one of the largest, and most costly, energy projects in Hawaiʻi s history, and has the capacity to permanently transform Hawaiʻi s natural, cultural, and legal landscapes. 18 The way in which Hawaiʻi approaches renewable energy projects like the Interisland Wind Project is critical in determining the way in which indigenous resources will be utilized in the future. Because the Interisland Wind Project presents a multitude of legal and environmental issues, this paper focuses on issues stemming from the Environmental Impact Statement ( EIS ) process pursuant to Chapter 343 of the Hawaiʻi Revised Statutes. More specifically, this paper recognizes the Cultural Impact Assessment process as a form of restorative justice for Kānaka Maoli communities, and uses the undersea cable between Oʻahu and Molokaʻi as an example of the cultural impacts and concerns implicated by these types of renewable energy projects and how they should be approached. 19 This paper evaluates whether Hawaiʻi s current legal framework is sufficient to address the environmental and cultural impacts that renewable energy projects, such as the Interisland Undersea Cable, will generate. Section I outlines the Racializing Environmental Justice analytical framework employed throughout this paper, and recognizes the importance of environmental laws as a form of restorative justice for Kānaka Maoli communities. Section II provides an overview of the cultural and historical context regarding the Kānaka Maoli relationship with their natural environment. 20 Section III provides background on the State s commitment to renewable energy sources and proposes the Interisland Undersea Cable Project as a means to achieve those energy goals. 21 Section IV details the evolution of Hawaiʻi s environmental protection laws and identifies specific legal provisions that protect Hawaiʻi s natural and cultural resources. 22 Finally, Section V identifies shortcomings in the current regulatory processes and offers potential safeguards to better protect the integrity of Hawaiʻi s natural and cultural resources by improving the State s Environmental Impact Statement Law is being developed on a continuing basis. As such, the focus of the comment is to stress the importance of and propose recommendations on approaching renewable energy projects with cultural sensitivity, using the Wind Project merely as an example. See infra Part III for more information. 18 See infra Part VI.A for more information. 19 See infra Part V. 20 See infra Part II. 21 See infra Part III. 22 See infra Part IV.

6 2011] Bryant 235 thus facilitating movement towards restorative justice for Kānaka Maoli communities. 23 I. PROVIDING A FRAMEWORK: ENVIRONMENTAL JUSTICE FOR KĀNAKA MAOLI COMMUNITIES Environmental justice is generally understood as requiring the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. 24 The environmental justice movement started in about 1994 when President Clinton signed Executive Order ( Executive Order ), which focused federal attention on the environmental and human health conditions of underrepresented groups with the goal of achieving environmental protection for all communities. 25 This Executive Order was intended to provide underrepresented groups with access to public information, and to also provide meaningful public participation in matters relating to human health and the environment. 26 The concept of environmental justice has four general characteristics. 27 The first key concept centers on improving [the] quality of life [for people of color] by making their communities safe from toxic chemicals, without sacrificing resources for future generations See infra Part V Haw. Sess. Laws Act 294, 1 at ; see also Exec. Order No. 12,898, 59 Fed. Reg (Feb. 16, 1994). 25 Id. Since President Clinton s issuance of Executive Order 12898, the Environmental Protection Agency ( EPA ), as the agency tasked with the protection and enhancement of the environment, has been working to integrate environmental justice initiatives into the Agency s programs, policies, and activities. See U.S. ENVIRONMENTAL PROTECTION AGENCY, PLAN EJ 2014, (last visited Oct. 29, 2011). In recognition of the 20th anniversary of the issuance of Executive Order 12898, EPA has issued a strategy entitled Plan EJ 2014 to help integrate environmental justice initiatives into EPA s day to day activities. Id. The goals of the plan are threefold: (1) to protect health in communities over-burdened by pollution, (2) to empower communities to take action to improve their health and environment, and (3) to establish partnerships with local, state, tribal and federal organizations to achieve healthy and sustainable communities. Id Haw. Sess. Laws Act 294, 1 at ; see also Exec. Order No. 12,898, 59 Fed. Reg (Feb. 16, 1994). 27 Eric K. Yamamoto & Jen-L W. Lyman, Racializing Environmental Justice, 72 U. COLO. L. REV. 311, 316 (2001); see Chasid M. Sapolu, Dumping on the Waiʻānae Coast: Achieving Environmental Justice through the Hawaiʻi State Constitution, 11 ASIAN-PAC. L. & POL Y J. 204, (2009) (discussing the environmental justice movement and its progression).

7 236 Asian-Pacific Law & Policy Journal [Vol. 13:1 Second, the environmental justice framework focuses on the disproportionate distribution of hazardous facilities and on the re-siting of those facilities. 29 This concept tends to focus on the physical location and relocation of polluting facilities, and not on the social and cultural effects on underrepresented communities. 30 Third, the framework seeks to ensure that communities of color have equal access to and representation in the administration of environmental laws and policies. 31 Environmental justice seeks to level the playing field with regard to environmental issues by opening communications between environmental and underrepresented groups in order to improve access to legislative, administrative, and judicial forums. 32 Finally, the environmental justice framework emphasizes a community-based movement to bring pressure on the person or agency with decision-making authority. 33 A. Incorporating Environmental Justice into Hawaiʻi s EIS Process: Racializing Environmental Justice Although the environmental justice framework attempts to remedy environmental racism, 34 the established framework is not wholly applicable to Hawaiʻi s unique historical, social, and cultural landscapes Yamamoto & Lyman, supra note 27, at (emphasis added). 29 Id. at Id. at Id. 32 Id. at Id. at As part of the environmental justice movement, Dr. Benjamin Chavis coined the term environmental racism to describe the disproportionate environmental impact on racial minorities, focusing primarily on toxic waste facilities[,]... poisons and pollutants in [the communities of] people of color. Michael Fisher, Environmental Racism Claims Brought Under Title VI of the Civil Rights Act, 25 ENVTL. L. 285, 289 (1995). This definition has since been broadened to focus on the unequal results of the practice. See id. at 290. Professor Robert Bullard, a sociologist who is the most widely published commentator on the subject, describes environmental racism as [a]ny policy, practice, or directive that, intentionally or unintentionally, differentially impacts or disadvantages individuals, groups, or communities based on race or color; [as well as the] exclusionary and restrictive practices that limit participation by people of color in decision-making boards, commissions, and staffs. Id. at (emphasis and brackets in original). 35 See Yamamoto & Lyman, supra note 27, at 312; see also, Melody Kapilialoha MacKenzie et al., Environmental Justice for Indigenous Hawaiians: Reclaiming Land and Resources, 21 NAT. RESOURCES & ENV T 37, 38 (2007) (explaining that while effective, the [environmental justice] framework often fails to comprehend complex

8 2011] Bryant 237 The problem with the general environmental justice framework is that it undercuts environmental justice struggles by racial and indigenous communities because it tends to foster misassumptions about race, culture, sovereignty, and the importance of distributive justice. 36 Such misassumptions tend to gloss over things of central importance to these communities, including Kānaka Maoli. 37 For Kānaka Maoli, environmental justice is about their spiritual and economic connections to the environment, cultural resurrection, and political nationalism. 38 It is about preventing degradation to Kānaka Maoli communal, economic, and spiritual interests. 39 Thus, rather than taking a one size fits all approach, the established environmental justice framework needs to be reexamined and narrowly tailored for each indigenous community, in order to best accomplish both the environmental, cultural, and political needs and goals of these communities. As proposed by Professor Eric K. Yamamoto, 40 the racializing environmental justice approach seeks to expand the standard environmental justice framework to recognize that each racial group is differently situated according to its specific socio-economic needs, political power, cultural values, and group goals. 41 Racializing environmental justice reveals the interests of Kānaka Maoli communities by inquiring into the historical and contemporary social influences on Kānaka Maoli identity. 42 The racializing environmental justice issues of indigenous peoples spiritual, social, and cultural connections to the land and natural environment. ). 36 Yamamoto & Lyman, supra note 27, at 320. For example, the general environmental justice framework tends to assume that all racial and indigenous groups, and therefore racial and indigenous group needs, are the same. Id. at 323. Additionally, the framework also assumes that fair distribution of physical burdens is the primary, if not sole, means of achieving environmental justice. Id. at 322. Finally, the framework assumes that for all indigenous communities, a hazard-free physical environment is their main, if not only, concern. Id. at 320. Rather, for Kānaka Maoli, as well as other indigenous peoples, environmental justice is largely about cultural and economic selfdetermination as well as about belief systems that connect their history, spirituality, and livelihood to the natural environment. See MacKenzie et al., supra note 35, at Yamamoto & Lyman, supra note 27, at Id. at Id. 40 Eric K. Yamamoto is an internationally recognized law professor who teaches at the University of Hawaiʻi William S. Richardson School of Law. 41 Yamamoto & Lyman, supra note 27, at Id. at 358.

9 238 Asian-Pacific Law & Policy Journal [Vol. 13:1 approach explores the tension between Kānaka Maoli spiritual connections to the environment and the economic use and development of those resources. 43 The gaps in Hawaiʻi s current process for assessing the cultural impacts of proposed activities on cultural resources requires the larger community to begin rethinking established environmental frameworks. 44 This necessitates the understanding and treatment of racial and native communities and their relationship to the environment with greater complexity based on each community s cultural, historical, and political experience and its specific needs and goals. 45 B. Defining the Injustice On the ancient burial ground of our ancestors, glass and steel shopping malls with layered parking lots stretch over what were once the most ingeniously irrigated taro lands, lands that fed millions of our people over thousands of years. Large bays, delicately ringed long ago with wellstocked fishponds, are now heavily silted and cluttered with jet skis, windsurfers, and sailboards. Multistory hotels disgorge over six million tourists a year onto stunningly beautiful (and easily polluted) beaches, closing off access to locals. On the major islands of Hawaiʻi, Maui, Oʻahu, and Kauaʻi, meanwhile, military airfields, training camps, weapons storage facilities, and exclusive housing and beach areas remind the Native Hawaiian who owns Hawaiʻi: the foreign, colonial country called the United States of America. 46 The overthrow of the Kānaka Maoli government in 1893 and the forced annexation to the United States in 1898 began a long period of political and cultural suppression. 47 Even before the illegal overthrow of 43 Id. 44 Id. at Id. 46 HAUNANI-KAY TRASK, FROM A NATIVE DAUGHTER: SOVEREIGNTY IN HAWAIʻI 2-3 (1999). COLONIALISM AND 47 Id. at 65. American businessmen were successful in infiltrating the Kānaka Maoli Government and organized themselves into an all-white regime recognized by the American Government as the Provisional Government of Hawaiʻi. Id. at 12. In 1893, confronted with the Provisional Government and the looming presence of U.S. military

10 2011] Bryant 239 the Hawaiian government, a survey of Kānaka Maoli history, beginning with the first foreign contact in 1778 through the present, reveals a long history of the upheaval of the traditional Maoli society: culturally, socially, and economically. 48 Colonialism in Hawaiʻi not only worked to forces, Queen Liliʻuokalani ceded her authority to the United States of America on January 17, 1893 under protest in an attempt to avoid any collision of armed forces and perhaps the loss of life, until such time as the U.S. Government would reinstate her as the constitutional sovereign of the Hawaiian Islands. Id. at 12-13; see LILIʻUOKALANI, HAWAIʻI S STORY BY HAWAIʻI S QUEEN (1990) (citing a statement made by Queen Liliʻuokalani to U.S. Minister Blount). Then-President Grover Cleveland expressed his sentiments about the annexation treaty, explaining: [b]y an act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress, the Government of a feeble but friendly and confiding people has been overthrown. A substantial wrong has thus been done[,] which a due regard for our national character as well as the rights of the injured people requires we should endeavor to repair. TRASK, supra note 46, at 15 (emphasis added). Hawaiʻi was nevertheless illegally annexed to the U.S. government despite the great will of the people as expressed in a myriad of anti-annexation petitions. TRASK, supra note 46, at 13-15; see also James Blount, Report of the Commissioner to the Hawaiian Islands, Exec. Doc. No. 47, 53rd Congress, 2nd sess (1893); NOENOE SILVA, ALOHA BETRAYED: NATIVE HAWAIIAN RESISTANCE TO AMERICAN COLONIALISM 4 (2004) ( The [annexation] petition and the story of the several hui that organized it, affirmed that the Kānaka Maoli had not stood by idly, apathetically, while their nation was taken from them. ). 48 There are many factors that together contributed to the cultural upheaval of the Kānaka Maoli. The missionary movement beginning in 1800 s worked to suppress the indulgent and naturalistic practices of the Kānaka Maoli and instead urged Kānaka Maoli conformity with the rigidly puritanical culture of the Protestant and Catholic missionaries. See ANDREW W. LIND, HAWAII S PEOPLE 4 (4th ed.1980). Meanwhile, introduced epidemics ravaged the Kānaka Maoli communitites and were responsible for the collapse of over ninety percent of the Native Population. OSORIO, supra note 7, at As the Kānaka Maoli struggled to cope with the political complexities brought about by foreign threats, mass disease, and social disorder, their chiefs executed changes in the administration of government and in the traditional Maoli religion. See id. at 8. While Kānaka Maoli saw the growing presence of foreigners in the Islands as contributing to the miserable fortunes of their people, the foreigners and their new religion promised to rescue the Kānaka Maoli and their chiefs from the social breakdown. Id. at 11. The Kānaka Maoli chiefs initiated a system of laws based on Christian morality, which altered the traditional morality and custom, and caused the Kānaka Maoli to give up on their own culture and values. Id. Reliance on the advice of foreigners brought about the institution of a Western economic system that ultimately dispossessed the Natives of land, identity, and nationshood. Id. at 13. The very fabric of Kanaka Maoli society was ripped apart and replaced by a completely foreign institution. As foreigners came to dominate the sandalwood trade beginning in the 1820s, and traditional lands were quickly transferred to foreign ownership and burgeoning sugar planataions. TRASK, supra note 49, at 6-7. The advent of a highly profitable planatation economy exploited Hawaiʻi s finite natural resources and continued to transform Maoli society as plantations imported a foreign workforce. See LIND, at 5. The social hierarchy that developed in Hawaiʻi as a result of the dominating sugar and pinapple industry had the effect of creating a fairly distinct barrier of social distances [that] separated the proprietary whites from the large mass of nonwhite laborers. Id. at 7. The eventual decline of plantation agriculture gave rise to the commercial, tourist, and military

11 240 Asian-Pacific Law & Policy Journal [Vol. 13:1 seize native lands and government, but isolated and removed Kānaka Maoli from their traditions, ideas, and institutions. 49 Western contact brought catastrophic social change for Kānaka Maoli in the form of foreign diseases, which caused a major collapse in the native population decimating the Kānaka Maoli population from approximately one million at the arrival of Westerners in 1778 to 39,000 by the end of the nineteenth century. 50 As foreign-introduced diseases ravaged Kānaka Maoli communities, foreigners introduced a new religion promising life when death was everywhere. 51 This new belief system disrupted the spiritual beliefs that held Maoli society together for centuries and transcended into every aspect of Kānaka Maoli society. 52 After successfully implementing a new religion, missionaries began to consider exploitation of the Hawaiian Islands that is apparent in Hawaiʻi s society today. See id. at 77; TRASK, supra note 46, at (noting [u]nder foreign control, we have been overrun by settlers; missionaries and capitalists... adventurers and, of course, hordes of tourists, nearly seven million by Preyed upon by corporate tourism, caught in a political system where we have no separate legal status... to control our land base... In the meantime, shiploads and planeloads of American military forces continue to pass through Hawaiʻi... Fully one-fifth of our resident population is military, causing intense friction between locals, who suffer from Hawaiʻi s astronomically high cost of housing and land, and the military, who enjoy housing and beaches for their exclusive use. ). This brief history gives breadth to the struggle of Maoli society, culture, and control over Kānaka Maoli natural and cultural resources. 49 See OSORIO, supra note 7, at See generally, DAVID STANNARD, BEFORE THE HORROR: THE POPULATION OF HAWAIʻI ON THE EVE OF WESTERN CONTACT (1989); see also OSORIO, supra note 7, at 9-10; Troy Andrade, Native Hawaiian Redress 3 (Oct. 20, 2009) (unpublished article) (on file with author). There has long been disagreement as to the true numbers of the Kānaka Maoli population upon the arrival of the first documented foreigner, Captain James Cook, in See OSORIO, supra note 7, at 10. These numbers range from upwards of one million to a minimum of 500,000. Id. Even if the low range is used, the massive depopulation that occurred over the course of a century effectively decreased the Maoli population by ninety-two percent. Id. 51 OSORIO, supra note 7, at 13. Kānaka Maoli believed that the rapid depopulation was a sign of the loss of pono in Hawaiian society. KAMEʻELEIHIWA, supra note 3, at 140. From the Maoli perspective, pono is defined as perfect harmony, and denotes a universe in perfect harmony. Id. at 25. This led Kānaka Maoli to believe that the ʻAikapu system, the previous system of governance in Hawaiian society, had failed and the only alternative for the governing chiefs was to accept the pono that missionaries promised in the form of the Christian religion. See generally id. at OSORIO, supra note 7 at 10; see KAMEʻELEIHIWA, supra note 3, at 144. The missionaries convinced the aliʻi, or chiefs, that all Hawaiian customs were wrong and sinful, and the promise of life could only be obtained by the renunciation of these customs and by obedience to Jesus Christ. KAMEʻELEIHIWA, supra note 3, at 144. As more aliʻi renounced the old traditions and embraced Christianity, the seed of self-doubt about the worth of Hawaiian culture was planted in the Hawaiian breast. Id.

12 2011] Bryant 241 the implications of these changes for their own good and sought to subvert the entire Maoli way of life. 53 Drastic revisions worked to prohibit behavior that was intrinsically native, such as ʻawa 54 drinking, hula, and a ban on the ʻōlelo makuahine, or mother-tongue of Kānaka Maoli. 55 As the various elements of Maoli society were changing, the destruction of Maoli self-confidence in their own institutions caused them to rely on the power of foreign advice. 56 Western concepts of privatized land proceeded to change the relationship between kānaka, their aliʻi, 57 and the land. 58 With the privatization of previously communal land and water rights, American business interests quickly acquired a monopoly on Hawaiʻi s natural and cultural resources. 59 As large agricultural plantations diverted large amounts of water from Maoli communities, Kānaka Maoli were forced out of their homelands and obligated to replace subsistence lifestyles with Western forms of survival. 60 As business interests peaked, American entrepreneurs created an all-white regime, recognized by the U.S. government as the Provisional 53 See OSORIO, supra note 7, at ʻAwa is defined as [t]he kava (Piper methysticum). PŪKUʻI & ELBERT, supra note 5, at 33. The root was a source of a narcotic drink used in ceremonies and it was also used medicinally. Id. 55 OSORIO, supra note 7, at 13. ʻŌlelo makuahine is literally defined as mother tongue and often refers to the Hawaiian language. PŪKUʻI & ELBERT, supra note 5, at OSORIO, supra note 7, at Aliʻi is defined as chief, or monarch. PŪKUʻI & ELBERT, supra note 5, at 58 OSORIO, supra note 7, at 20. The privatization of land in Hawaiʻi was accomplished via a drastic transformation in the political authority of the chiefs, especially their control of the land. Id. Traditionally land was the responsibility of the Mōʻī, who placed lesser aliʻi in charge of managing the land and the people on it. Id. at 47. The restructuring of the traditional land tenure system separated the makaʻāinana, or commoners, from their aliʻi and forced upon them a sense of individual liability. Id. at 49. The mechanism created to provide for private ownership of previously communal land worked to separate foreign and Hawaiian worldviews, leaving very little that was recognizably Hawaiian. Id. at As owners of land for the first time, makaʻāinana were easily divested of their property without the weight of tradition, custom, konohiki, or Mōʻī to intercede on their behalf. Id. at D. KAPUAʻALA SPROAT, OLA I KA WAI: A LEGAL PRIMER FOR WATER USE AND MANAGEMENT IN HAWAIʻI 6 (2009). 60 See id.

13 242 Asian-Pacific Law & Policy Journal [Vol. 13:1 Government of Hawaiʻi, which moved briskly to secure annexation of Hawaiian lands to American forces. 61 To prevent any loss of life, the sovereign of the Hawaiian Kingdom yielded her authority under protest until such a time that the U.S. Government would reinstate her. 62 In an address to Congress, President Grover Cleveland asserted that the U.S. Government should endeavor to repair the substantial wrong that they had committed against Kānaka Maoli and their government. 63 Despite these sentiments, shortly after President Cleveland left office, the Provisional Government seized and ceded native lands to the United States, who then unilaterally annexed Hawaiʻi as a territory in 1898 by virtue of a resolution rather than by treaty. 64 As a condition of Hawaiʻi s admission into the Union, the State of Hawaiʻi agreed to hold certain lands granted to it by the United States in a public land trust, which is known as the ceded lands trust. 65 In 1959, without acknowledging the controversy surrounding the illegal overthrow, the Hawaiʻi Admission Act was passed and signed into law, making Hawaiʻi the United States of America s 50th State See TRASK, supra note 46, at LILIʻUOKALANI, supra note 47, at 387 (detailing Queen Liliʻuokalani s statement made to U.S. Minister James Blount). In this statement, Liliʻuokalani solemnly protest[ed] against any and all acts done against myself and the constitutional government of the Hawaiian kingdom. Id. She further yielded to the superior force of the United States of America in an attempt to avoid any collision of armed forces, and perhaps the loss of life... until such time as the Government of the United States shall... undo the action of its representatives and reinstate me in the authority which I claim as the constitutional sovereign of the Hawaiian Islands. Id. at TRASK, supra note 46, at Id. at 16; see also NOENOE K. SILVA, ALOHA BETRAYED: NATIVE HAWAIIAN RESISTANCE TO AMERICAN COLONIALISM (2004); Andrade, supra note 50, at 5. There remain questions today regarding the legality of the annexation of Hawaiʻi. 65 An Act to Provide for the Admission of the State of Hawai i into the Union, Pub. L. No. 86-3, 73 Stat. 4 (1959). The lands referred to in the Admission Act are defined as the lands and properties that were ceded to the United States by the Republic of Hawaii under the joint resolution of annexation... or that have been acquired in exchange for lands or properties so ceded. Id. 5(g). The bulk of these lands are comprised of Crown and Government lands. See JON M. VAN DYKE, WHO OWNS THE CROWN LANDS OF HAWAIʻI? 9 (2008) ( Under the Republic of Hawaii and during the territorial and statehood periods, the Kingdom s Government Lands and Crown Lands were joined together and managed simply as the Ceded Lands or the Public Lands Trust. ). While the Government Lands were designed to be public lands in which to provide for the general needs of the population, the Crown Lands were originally part of the personal domain of Kamehameha III and evolved into a resource designed to support the Hawaiian Monarchs. Id. The Monarchs understood that these lands were a collective resource and should be used to support the common Hawaiians. Id. at 10.

14 2011] Bryant 243 Despite the promises that Statehood offered, 67 the devastating consequences of the illegal overthrow, annexation, and statehood continued. 68 The crippling consequences of colonialism separated Kānaka Maoli from their one hānau 69 as well as their traditions, and worked to psychologically and spiritually harm the Indigenous People s will, confidence, and trust. 70 Thus, Hawaiʻi s economic, social, and political history of the past two centuries can be told largely in terms of the persistent search for more effective means of supporting human life and of capitalizing on its limited land and sea resources within the context of a rapidly changing world community. 71 In 1993, the U.S. Government passed the Apology Resolution recognizing the historical injustice and continuing wrongs inflicted upon Kānaka Maoli. 72 This federal action acknowledged the historical 66 An Act to Provide for the Admission of the State of Hawai i into the Union, Pub. L. No. 86-3, 73 Stat. 4 (1959). See also, Andrade, supra note 50, at 6. This was done without offering Kānaka Maoli other decolonization options such as independence or commonwealth status. Id. 67 Statehood helped change the legal landscape of the early heavily westernized courts in Hawaiʻi. See SPROAT, supra note 59, at 6 (noting that after statehood, judges were appointed locally instead of being chosen from Washington D.C., as they were during the Territorial period. ). Id. This provided for judges that were better versed in local laws and issues, including Hawaiian custom and tradition, which provide a foundation for Hawaiʻi s common law. Id.; see also infra Part IV. 68 See supra Part I.B. 69 One hānau is defined as birthplace or homeland. PŪKUʻI & ELBERT, supra note 5, at This concept has been described as the cultural bomb by some scholars. See NGUGI WA THIONGʻO, DECOLONIZING THE MIND: THE POLITICS OF LANGUAGE IN AFRICAN LITERATURE 3 (1986). As Ngugi wa Thiongʻo has explained, the biggest weapon wielded... by imperialism... is the cultural bomb. The effect of the cultural bomb is to annihilate a people s belief in their names, in their languages, in their environment, in their heritage of struggle, in their unity, in their capacities and ultimately in themselves. Id. 71 LIND, supra note 48, at Joint Resolution of Nov. 23, 1993, Pub. L. No , 107 Stat (1993) [hereinafter Apology Resolution ]. In the Apology Resolution, Congress acknowledges the historical significance of [the illegal overthrow of the Kingdom of Hawaii] which resulted in the suppression of the inherent sovereignty of the Native Hawaiian people; recognized and commends efforts of reconciliation[;] apologizes to Native Hawaiians on behalf of the people of the United States for the overthrow... and the deprivation of the rights of Native Hawaiians to self-determination; expresses its commitment to acknowledge the ramifications of the overthrow... in order to provide a proper foundation for reconciliation[;] and urges the President of the United States to also acknowledge the ramifications and to support reconciliation efforts between the

15 244 Asian-Pacific Law & Policy Journal [Vol. 13:1 significance of the illegal overthrow and expressed a strong congressional commitment to support reconciliation and restoration efforts. 73 In acknowledging that the Kānaka Maoli are determined to preserve, develop and transmit to future generations their ancestral territory, and their cultural identity in accordance with the own spiritual and traditional beliefs, customs, practices, language, and social institutions, the apology resolution paves the way for federal and state reconciliation efforts to preserve and protect Kānaka Maoli rights in their land and natural and cultural resources. 74 C. The Enactment of Natural and Cultural Resource Protections as a Mechanism for Restorative Justice for Kānaka Maoli The emergence of the Hawaiian Renaissance in the 1970s 75 spurred action at both the federal and state levels. 76 State leaders at the 1978 State Constitutional Convention responded by reaffirming the State s obligation to protect Kānaka Maoli rights customarily and traditionally exercised for subsistence, cultural and religious purposes, by incorporating it into the article XII, section 7 of the Hawaiʻi State United States and the Native Hawaiian people. Id. 73 Id. Within the apology resolution, Congress expressed a strong commitment of reconciliation and urged the President to apologize for the United States active role in the illegal conspiracy to overthrow the... Kingdom of Hawaiʻi, and a commitment to support reconciliation efforts between the United States and the native Hawaiian people. Andrade, supra note 50, at Id. 75 By the mid-1960s, a renewed interest in traditional Hawaiian arts and culture was beginning to emerge in Hawaiʻi. Michael Tsai, Hawaiian Renaissance, HONOLULU ADVERTISER, Aug. 16, 2009, (last visited Sept. 1, 2011). As Hawaiian arts and culture were making a comeback, young Native Hawaiians inspired by the civil rights movement of the 1960s and the worldwide struggles by indigenous peoples to attain social justice turned their attention to land struggles brought about by the tourism-propelled development boom of the 1960s and 70s. Id. From the early 1970s, Native Hawaiians initiated a sovereignty movement for land reclamation, cultural resurrection and self-governance. Andrade, supra note 50 at 7. The Hawaiian movement evolved from a series of protests against land abuses, through various demonstrations and occupations to dramatize the exploitative conditions of Hawaiians, to assertions of Native forms of sovereignty based on indigenous birthrights to land and sea. TRASK, supra note 46, at 66. At this time, the merging of land-rich but capital-poor landowners with out-of-state corporations became a familiar pattern and resort and residential developments spurred antidevelopment battles wherever it occurred. Id. at TRASK, supra note 46, at 69.

16 2011] Bryant 245 Constitution. 77 This breathed new life into protections for Hawaiʻi s natural and cultural resources. 78 In Hawaiʻi, the definition of environmental justice incorporates an emphasis on the responsibility of every person in Hawaiʻi to uphold traditional and customary Native Hawaiian practices that preserve, protect, and restore the ʻaina [sic] for present and future generations. 79 In 2000, Act 50 amended Hawaiʻi s EIS process, which is one of the primary processes for evaluating impacts to Hawaiʻi s natural resources. 80 The Act 50 amendments required a comprehensive assessment of any impacts on the economic welfare, social welfare, and cultural practices of the community. 81 To effectuate this policy, the State must recognize the importance of traditional Kānaka Maoli values and practices so that past and continuing harms to natural and cultural resources may be considered and mitigated. 82 Without accounting for environmental justice concerns in Hawaiʻi s EIS process, the goals articulated by the State Legislature and courts regarding the protection of cultural resources, practices, and beliefs will never be fully realized nor will Kānaka Maoli ever possess a sense of restorative justice for the past wrongs committed against their people, land, government, and culture. 83 II. THE CULTURAL AND HISTORICAL SIGNIFICANCE OF WIND AND WATER TO KĀNAKA MAOLI Kānaka Maoli have a special connection to the natural elements, such as the wind and water, which goes above and beyond the general public s affinity for these elements. 84 Deeply-rooted values of respect and 77 HAW. CONST. art. XII, See infra Part IVIII.B (discussing other protections given to natural and cultural resources, including HAW. REV. STAT. 1-1, 7-1 (2009)). 79 Leslie Kahihikolo, State of Haw. Envtl. Council, Hawaiʻi Environmental Justice Initiative Report 4-6 (2008). 80 See infra Part VIV.B for more information on Hawaiʻi s Environmental Impact Statement laws Haw. Sess. Laws 93 (codified in HAW. REV. STAT (2010)). 82 See infra Part VIIII. 83 See infra Part V. 84 For a discussion on the Kānaka Maoli connection to the natural elements, see generally THE KUMULIPO: A HAWAIIAN CREATION CHANT (Martha Warren Beckwith ed. & trans., 1951) [hereinafter THE KUMULIPO].

17 246 Asian-Pacific Law & Policy Journal [Vol. 13:1 responsibility for the ʻāina and its resources are prevalent in and fundamental to Maoli culture. 85 A. Kumulipo: Kānaka Maoli s Source of Origin The Kumulipo is the sacred creation chant of a family of Hawaiian aliʻi 86 that traces that family s history to the beginning of the world. 87 The Kumulipo articulates and reveals the connection between sky and earth, earth and ocean, ocean and land, land and kānaka, kānaka and gods, and returns again to create the interrelationship of all things in an everlasting continuum. 88 It is the genealogy that connects Kānaka Maoli to a host of natural and cultural resources. 89 Engrained in the Kumulipo is a dichotomy between species from mauka and makai; every species on land has a counterpart in the sea. 90 It is this balance that allows the natural environment to achieve a state of pono. 91 Although traditional management systems are no longer in place to protect Hawaiʻi s natural resources, the principles of aloha ʻāina and mālama ʻāina are still prevalent today. 92 Many believe that if you take care of the land, the land will take care of you. 93 This deep affinity for the ʻāina is derived from the 85 See KAMEʻELEIHIWA, supra note 3, at See PŪKUʻI & ELBERT, supra note 5, at See generally THE KUMULIPO, supra note Pualani Kanakaʻole Kanahele, Kūʻula Kumulipo, (last visited Mar. 3, 2010). 89 Id. 90 See generally THE KUMULIPO, supra note For Kānaka Maoli, this balance and harmony is known as pono. See KAMEʻELEIHIWA, supra note 3, at 25. Pono is defined as true condition or nature, in perfect order, and goodness. PŪKUʻI & ELBERT, supra note 5, at 340. See also, KAMEʻELEIHIWA, supra note 3, at 25 ( [Pono] is often translated in English as righteous, but actually denotes a universe in perfect harmony. ). 92 KAMEʻELEIHIWA, supra note 3, at 33 ( [N]o matter how corrupting and powerful the capitalist pressures for the private ownership of ʻĀina might have been, the concept of mālama endured and still endures in modern times. ). Kānaka Maoli possess a spiritual as well as genealogical connection to the natural environment. This connection is embodied in the Kumulipo, the cosmogonic genealogy that traces the Kānaka Maoli to the very origins of the earth. See generally THE KUMULIPO, supra note KAMEʻELEIHIWA, supra note 3, at 25.

18 2011] Bryant 247 Kumulipo and the spiritual and genealogical connection possessed by every Kānaka Maoli. 94 It is the Kumulipo, specifically the genealogy of Papa and Wākea, which inherently connects the Kānaka Maoli to the ʻāina. 95 Although the Kumulipo is a genealogical prayer chant linking a specific royal family to the creation of the Earth, the Kumulipo applies to all Maoli as a reflection of old Hawaiian social life and philosophy in its treatment of the birth of life on earth and the myths of the gods. 96 B. I paʻa i ke Kalo ʻaʻole ʻoe e puka; If it had ended with the Kalo you would not be here. 97 Kānaka Maoli believe that Hāloanaka, the first kalo plant, was the elder sibling of the first Kānaka. Had it ended with the Kalo, the Kānaka Maoli people would never have existed. 98 Many genealogical lines are incorporated into the Kumulipo, 99 including that of Papa, earth-mother, and Wākea, sky-father. The genealogy of Papa and Wākea is critical in forming the relationship between Maoli and the ʻāina. 100 The mating of Papa and Wākea resulted in the creation of most of the principal Hawaiian Islands. 101 Their mating also produced a daughter, Hoʻohōkūkalani. 102 In a subsequent nīʻaupiʻo 103 mating between Wākea and Hoʻohōkūkalani, 94 See generally THE KUMULIPO, supra note See infra Part I.B. 96 THE KUMULIPO, supra note 84. The Kumulipo establishes some of the foundational values, such as mālama ʻāina and aloha ʻāina, that make up the fabric of Hawaiian culture. 97 MARY KAWENA PŪKUʻI, ʻŌLELO NOʻEAU: POETICAL SAYINGS 135 (1983) HAWAIIAN PROVERBS AND 98 Id. 99 See generally THE KUMULIPO, supra note See KAMEʻELEIHIWA, supra note 3, at Id. Papa and Wākea are said to be the parents of the islands of Hawaiʻi, Maui, Kauaʻi, Niʻihau, as well as the islands of Lehua and Kaʻula. Id. 102 Id. 103 Nīʻaupiʻo is defined as offspring of the marriage of a highborn brother and sister, or half-brother and half-sister. PŪKUʻI & ELBERT, supra note 5, at 265. Incest, from the Maoli perspective, is by definition a formula for creating divinity; further, the very act of incest is proof of divinity because it was reserved only for the highest classes of aliʻi. KAMEʻELEIHIWA, supra note 3, at 40.

19 248 Asian-Pacific Law & Policy Journal [Vol. 13:1 Hāloanaka was born. 104 Hāloanaka, a still-born offspring, subsequently became the first kalo plant. 105 A second offspring, Hāloa, eventually became the progenitor of all Kānaka Maoli. 106 This relationship establishes the inherent spiritual and genealogical connection that Kānaka Maoli have to the ʻāina: Hāloa as the elder sibling, and Kānaka Maoli as the younger sibling. 107 In traditional Hawaiian society, it was the duty of younger siblings and junior lineages to love, honor, and serve their elders; the relationship between Kānaka (man) and Hāloa (ʻāina) establishes the Kānaka Maoli cultural values of mālama ʻāina and aloha ʻāina that survive today. 108 C. Cultural Significance of the Wind Kānaka Maoli cultivate a spiritual relationship with their natural environment. 109 They believe that natural phenomena such as wind, clouds, sea, and sky are physical manifestations of beings that dwell upon the earth much longer than kānaka themselves. 110 This affinity extends to both the tangible and intangible. 111 Every type of water, rain, and wind are individually named. 112 With regard to wind specifically, Kānaka Maoli 104 KAMEʻELEIHIWA, supra note 3, at Id. 106 Id. 107 Id. at Id. 109 See THE KUMULIPO, supra note ANDRADE, supra note 50, at See THE KUMULIPO, supra note The names given to these resources reflected their particular character and nature and contain traditional knowledge accumulated by Hawaiian ancestors in utilizing the natural resources of these areas, providing [Kānaka Maoli] with information they need to understand and adapt to the qualities and character of the land in which they live. DAVIANNA PŌMAIKAʻI MCGREGOR, NĀ KUAʻĀINA: LIVING HAWAIIAN CULTURE 5 (2007). The names of places and natural elements not only provide a profound sense of identity with the ʻāina or land and natural resources, they also convey a sense of responsibility to provide stewardship of the area where they live. Id. See generally MOSES K. NAKUINA, THE WIND GOURD OF LAʻAMAOMAO (1990). Every wind of the principle Hawaiian Islands are individually named according to its location and individual characteristics. Id. Many rains are also named and associated poetically with particular origins and characteristics of the rain with regard to its effect on the flora and fauna, and on the kānaka themselves. See also PŪKUʻI & ELBERT, supra note 5, at 361.

20 2011] Bryant 249 gave a detailed relation of all the winds that ever blew throughout the islands, including their names, attributes, and localities. 113 Winds were revered and honored by Kānaka Maoli in the form of ʻōlelo noʻeau, moʻolelo, 114 oli, 115 and mele. 116 The epic of Pākaʻa, as written in The Wind Gourd of Laʻamaomao, epitomizes the Kānaka Maoli relationship with the wind. 117 Laʻamaomao was worshipped as an ʻaumakua 118 and exalted as a demigod. 119 His gourd was believed to contain all the winds of Hawaiʻi, each of which could be called forth by chanting their names. 120 The gourd itself was the embodiment of Lono, the Hawaiian god of agriculture and fertility: 121 Lono is the gourd; the cosmic gourd is the heavens whence come winds, clouds, and rain. 122 In the epic of Pākaʻa, the gourd, along with the wind chants naming the dozens of local winds across the Hawaiian Islands, was passed down from Laʻamaomao. 123 Similarly, kai (sea) was also named according to locale and characteristic. See, e.g., id. at 115 (citing examples of different types of kai, including for example, kai ʻewalu, which is a poetic expression referring to the channels between the islands). (1996). 113 ABRAHAM FORNANDER, ANCIENT HISTORY OF THE HAWAIIAN PEOPLE A moʻolelo is a story, tale, myth, history, tradition, literature, legend, etc. PŪKUʻI & ELBERT, supra note 5, at An oli is a chant that was not danced to. Id. at A mele is a song, anthem, or chant of any kind; poem, poetry. Id. at 245; see generally, NAKUINA, supra note See generally NAKUINA, supra note An ʻaumakua refers to family or personal gods, deified ancestors who might assume the shape of sharks (all islands except Kauaʻi), owls (as at Mānoa, Oʻahu and Kaʻū and Puna, Hawaiʻi), hawks (Hawaiʻi), ʻelepaio, ʻiwi, mudhens, octopuses, eels, mice, rats, dogs, caterpillars, rocks, cowries, clouds, or plants. PŪKUʻI & ELBERT, supra note 5, at 32. A symbiotic relationship existed; mortals did not harm or eat ʻaumākua, and ʻaumākua warned and reprimanded mortals in dreams, visions, and calls. Id. 119 FORNANDER, supra note 113, at NAKUINA, supra note 112, at viii. 121 Id. at viii-ix. 122 E.S.C. HANDY & E.G. HANDY, NATIVE PLANTERS IN OLD HAWAII: THEIR LIFE, LORE, AND ENVIRONMENT 220 (1972). 123 See NAKUINA, supra note 112.

21 250 Asian-Pacific Law & Policy Journal [Vol. 13:1 D. Cultural Significance of the Sea He ui, he nīnau, A query, a question, *** *** E ui aku ana au iā ʻoe This question I ask of you: Aia i hea ka Wai a Kāne? Where, pray, is the water of Kāne? Aia i kai, i ka moana, Yonder, at sea, on the ocean, I ke Kualau, i ke ānuenue In the driving rain, in the heavenly bow, I ka pūnohu, i ka ua koko, In the piled-up mist wraith, in the blood-red rainfall I ka alewalewa; In the ghost-pale cloud form; Aia i laila ka Wai a Kāne. There is the water of Kāne. 124 The traditional mele 125 He Mele Nō Kāne exemplifies the place of water in Maoli society and explains that prized waters lie in the land of the gods: under the waves, beyond the horizon, in the heavy clouds supporting the arches of heaven, and in the driving sheets of rain that surround us in our natural environment. 126 In ancient times, water was a procreative force identified with the gods. 127 Kānaka Maoli made their way to the Hawaiian Islands over the vast expanse of the Pacific Ocean. 128 The waters surrounding them not only offered a spiritual connection to 124 Excerpt from NATHANIEL B. EMERSON, KA WAI A KĀNE, UNWRITTEN LITERATURE OF HAWAI I, THE SACRED SONGS OF THE HULA (1964) (kahakō added). Wai generally refers to fresh water as opposed to sea water; however, such resources are also found in the kai. Kai generally refers to sea water and the eight seas. Nā Kai Ewalu are often poetically used to refer to the channels dividing the eight main Hawaiian Islands. PŪKUʻI & ELBERT, supra note 5, at See supra note 116 (defining mele ). MYTH 11 (1989). 126 RITA KNIPE, THE WATER OF LIFE: A JUNGIAN JOURNEY THROUGH HAWAIIAN 127 John Castle & Alan Murakami, Water Rights, in NATIVE HAWAIIAN RIGHTS HANDBOOK 149 (1991) [hereinafter NATIVE HAWAIIAN RIGHTS HANDBOOK]. 128 FORNANDER, supra note 113, at 2-3 ( [F]rom their own genealogies and legends... during the first and second centuries of the Christian era many and properly organised [sic] migrations of the Polynesians into the Pacific Ocean took place from various points of the archipelago.... that branch of the Polynesian family from which the oldest ruling line of Hawaiian chiefs claim descent arrived at the Hawaiian group during the sixth century of the Christian era.... all the principal [island] groups had been occupied and peopled by the Polynesians migrating thither. )

22 2011] Bryant 251 their ancestors but also gave Kānaka Maoli a wealth of resources. 129 Kānaka Maoli gained sustenance from the waters of Kāne and reciprocated their appreciation by imposing strict kapu 130 and took the utmost care to hoʻomālama 131 these valuable resources. 132 Mālama ʻāina is at the very core of Kānaka Maoli s relationship with the natural environment. 133 In recent years, Kānaka Maoli communities have been shaken by a myriad of large-scale developments that have wreaked havoc on Hawaiʻi s natural and cultural resources. 134 By circumventing protections under the Hawaiʻi s statutory and regulatory frameworks, 135 these projects have seriously impacted the integrity of Maoli resources and have fostered distrust within Kānaka Maoli communities regarding both the developments as well as the Environmental Impact Statement process. 136 This fractured relationship 129 MCGREGOR, supra note 112, at 15 ( The ocean provides an abundance of food. Subsistence activities continue to be the primary source of sustenance for the [Kānaka Maoli]. ). 130 Kapu is defined as a prohibition. PŪKUʻI & ELBERT, supra note 5, at 132. Kānaka Maoli treated their lands and resources with love and respect. MCGREGOR, supra note 112, at 14. If a resource is declining they will observe a kapu or restriction on its use until it recovers.... An inherent aspect of these practices is conservation to ensure availability of natural resources for present and future generations. Id. 131 Hoʻomālama is defined as to take care of, tend, maintain, preserve, protect. Id. at MCGREGOR, supra note 112, at 16 ( The first rule with regard to the land, ocean, and natural resources is to only take what is needed. Wasting natural resources is strongly condemned. It is also important to protect the ability of living resources to reproduce. ). 133 KAMEʻELEIHIWA, supra note 3, at See discussion in Part V, infra. 135 See e.g., Hawaiʻi Environmental Policy Act ( HEPA ), HAW. REV. STAT. ch. 343 (2010). Although the original bill was called A Bill for an Act Relating to Environmental Impact Statements, 1974 Haw. Sess. L. Act 246, at 706, and HRS chapter 343 is entitled Environmental Impact Statements, the law has long been referred to as the Hawaiʻi Environmental Policy Act, short formed as HEPA. Sierra Club v. Dep t of Transp., 115 Hawaiʻi 299, 304 n.4, 167 P.3d 292, 297 n.4 (2007). HEPA was patterned after the National Environmental Policy Act of 1969 ( NEPA ), 42 U.S.C (f) (2006), and requires that the government give systematic consideration to the environmental, social, cultural, and economic consequences of proposed development projects prior to allowing construction to begin. See id. at 299, 167 P.3d at An environmental impact statement is defined as An informational document prepared in compliance with the rules adopted under section and which discloses the environmental effects of a proposed action, effects

23 252 Asian-Pacific Law & Policy Journal [Vol. 13:1 will prove challenging for proponents and developers of the Interisland Wind and Undersea Cable Project, 137 whose project purports to further impact the Kānaka Maoli relationship with the āina. In conjunction with the Honolulu mass-transit rail project, 138 the Interisland Wind and Undersea Cable project comes at a critical time in Hawaiʻi s history and has the potential to significantly reshape Hawaiʻi s natural and cultural landscapes forever. 139 III. THE PUSH TO GO GREEN : HAWAIʻI S INTERISLAND WIND PROJECT There is no question that something must be done about Hawaiʻi s ever-growing energy needs. 140 The State of Hawaiʻi s dependence on fossil fuels far exceeds the rest of the country. 141 In 2007, Hawaiʻi spent $750 million on fossil fuels, 142 and petroleum currently provides nearly 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. The initial statement filed for public review shall be referred to as the draft statement and shall be distinguished from the final statement which is the document that has incorporated the public s comments and the responses to those comments. The final statement is the document that shall be evaluated for acceptability by the respective accepting authority. HAW. REV. STAT (2010). 137 See infra Part III for more information on the Interisland Wind Project. 138 See generally Natasha Baldauf, One-Way Track to Desecration: Implications of the Honolulu Rail s Failure to Comply with Protections Mandated for Native Hawaiian Burials, 12 ASIAN-PAC. L. & POL Y J. 141 (2010). See Baldauf, at 158 n.121 (referring to CITY AND COUNTY OF HONOLULU, HONOLULU HIGH-CAPACITY TRANSIT CORRIDOR PROJECT DRAFT ENVIRONMENTAL IMPACT STATEMENT, CHAPTER ONE, BACKGROUND, PURPOSE AND NEED, 1-1 to 1-3 (2008), available at The author notes that given Kānaka Maoli s traditional lifestyles, many assume that renewable energy projects would be favorably looked upon. However, to do so at the expense of the natural and cultural resources, when other alternatives have not yet been fully analyzed, directly contradicts the Kānaka Maoli value of mālama ʻāina. 140 See generally U.S. Energy Information Administration, Independent Statistics and Analysis, (last visited Nov. 10, 2011) (noting Hawaiʻi s high consumption and dependence on fossil fuels) [hereinafter U.S. Energy Information]. 141 Id. 142 Katie Falloon, Yalies to Study Environment in Hawaii, YALE DAILY NEWS,

24 2011] Bryant 253 nine-tenths of all the energy consumed in Hawaiʻi. 143 As the most reliant state, and the furthest away from any other landmass, the importance of working to achieve energy self-sufficiency is critical. 144 This shocking conclusion has spurred action at the federal, state, and county levels. 145 Due to the abundance of available indigenous resources, Hawaiʻi is one of only a handful of places on the planet that is capable of being completely energy self-sufficient. 146 The use and exploitation of Hawaiʻi s renewable resources, while necessary to achieve energy self-sufficiency, must be balanced carefully against the need to preserve and protect Kānaka Maoli lands, resources, and cultural values. A. Hawaiʻi Clean Energy Initiative: Moving Hawaiʻi Towards Energy Self-sufficiency Former Hawaiʻi Governor Linda Lingle and the U.S. Department of Energy signed a Memorandum of Understanding establishing the Hawaiʻi Clean Energy Initiative on January 31, The Hawaiʻi Clean Energy Initiative ( HCEI ) is a long-term partnership between the State of Hawaiʻi and the U.S. Department of Energy with the goal of obtaining seventy percent of Hawaiʻi s energy from renewable energy sources 148 by Even with the inauguration of the Abercrombie Nov. 11, 2009, available at (last visited on Nov. 10, 2011). 143 U.S. Energy Information, supra note Interview with Joshua Strickler, Facilitator of Renewable Energy Projects, Dept. of Bus., Econ. Dev. & Tourism, in Honolulu, Haw. (Jan. 15, 2010). 145 See e.g., State of Hawaiʻi & U.S. Dept. of Energy, Memorandum of Understanding between the State of Hawai i and the U.S. Department of Energy, (last visited Apr. 24, 2010) [hereinafter Memorandum of Understanding]; State of Hawaiʻi & Dept. of Energy, Clean Energy Initiative (on file with the author); State of Hawaiʻi, Energy Agreement Among the State of Hawaiʻi, Division of Consumer Advocacy of the Department of Commerce & Consumer Affairs and the Hawaiian Electric Companies, (last visited Apr. 24, 2010) [hereinafter Hawaiʻi Energy Agreement]. 146 Interview with Henry Curtis, supra note Memorandum of Understanding, supra note See HAW. REV. STAT (Supp. 2010) (defining renewable electric energy as energy generated or produced using... (1) Wind; (2) The sun; (3) Falling water; (4) Biogas, including landfill and sewage-based digester gas; (5) Geothermal; (6) Ocean water, currents, and waves, including ocean thermal energy conversion; (7) Biomass, including biomass crops, agricultural and animal residues and wastes, and municipal solid waste and other solid waste; (8) Biofuels; and (9) Hydrogen produced

25 254 Asian-Pacific Law & Policy Journal [Vol. 13:1 administration, the commitment to sustainable living remains; in Governor Abercrombie s State of the State address on January 24, 2011, the Governor made clear, [j]obs in energy, agriculture, and environmental protection will be a cornerstone in the new sustainable economy in Hawaii. 150 The State plans on substantively transforming its regulatory, financial, and institutional systems to achieve the rigorous energy goals of the projected renewable energy portfolio. 151 This initiative between the State and the federal government recognizes that economic and culturally sensitive use of natural resources can provide energy security. 152 Thus, the State of Hawaiʻi has committed itself to coordinate with Kānaka Maoli and others to ensure that local cultural needs are considered in achieving these rigorous energy goals. 153 Despite the State s commitment to taking a culturally sensitive approach to the Interisland Wind Project, these intentions are not being realized as Kānaka Maoli communities continue to express concern over the project and its ramifications for Hawaiʻi s natural and cultural resources. 154 from renewable energy sources. ). As such, renewable energy is energy generated from natural resources such as sunlight, wind, geothermal heat, etc., which are renewable (i.e., naturally replenished). See also HECO, (follow the Clean Energy hyperlink; then follow the Renewable Energy Basics hyperlink) (last visited Nov. 10, 2011). 149 Memorandum of Understanding, supra note Text of governor s State of the State speech, THE HONOLULU STAR- ADVERTISER, Jan. 24, 2011, State of Hawaiʻi & Dept. of Energy, Clean Energy Initiative: Strategic Vision and Implementation Presentation, (last visited Apr. 24, 2010) [hereinafter Clean Energy Initiative Presentation]. Renewable portfolio standard refers to the percentage of electrical energy sales that is represented by renewable electric energy. HAW. REV. STAT (2007). By statute, each electric utility company that sells electricity must establish a renewable portfolio standard of ten per cent of its net electricity sales by December 31, 2010, fifteen percent of its new electricity sales by December 31, 2015, twenty-five percent of its net electricity sales by December 31, 2020, and forty percent of its net electricity sales by December 31, HAW. REV. STAT (Supp. 2010). 152 Memorandum of Understanding, supra note See id. 154 See Maria Kanai, Interisland dilemma, THE HONOLULU WEEKLY, Aug. 3, 2011, Some Kānaka Maoli homesteaders on the Island of Molokaʻi, who continue to live subsistence lifestyles, stand firmly against the project because [t]he impacts are too huge for our island.... there is the possibility of damage to our reef. It can t be replaced once they go over there and do the damage.... No matter what benefits they offer us, it s not worth trading what we have already, which is a simple lifestyle. Id.

26 2011] Bryant 255 B. Hawaiʻi Energy Agreement On October 20, 2008, the State of Hawaiʻi entered into an Energy Agreement with the Department of Commerce and Consumer Affairs Division of Consumer Advocacy, and the Hawaiian Electric Companies 155 to work towards HCEI s goals. 156 The primary objective of the Energy Agreement is to acquire seventy percent of Hawaiʻi s energy needs from clean energy sources by To do so, by 2030, forty percent of Hawaiʻi s energy consumption needs are expected to come from renewable energy resources and the remaining thirty percent from energy efficiency techniques. 158 The Interisland Wind Project, which is further detailed within the Hawaiʻi Energy Agreement, is the first project that has been put forward as a major component to achieve this forty percent goal. 159 C. Breaking Barriers, Linking Islands: The Proposal for a Costly Interisland Undersea Cable The change won t come cheap and it won t be without sacrifices. 160 Hawaiʻi s current energy needs have driven the State to propose the largest renewable energy project to date, which includes plans to connect four independent island electrical grids for the first time. 161 The island of 155 See About HECO, supra note Id. 157 See Hawaiʻi Energy Agreement, supra note Id.; see also Marc Matsuura, Renewable Energy Integration from a Hawaiian Perspective, IEEE POWER & ENERGY MAGAZINE 64 (Nov. 2009), available at (last visited Nov. 21, 2011). 159 Hawaiʻi Energy Agreement, supra note 145, at 3-6. While the Interisland Wind Project is purported to be a major contributor towards Hawaiʻi s renewable energy goals, the project is expected to help the State achieve approximately six percent of its overall forty percent renewable energy goals. Joshua Strickler, Facilitator of Renewable Energy Projects, State of Hawaiʻi, Address at the William S. Richardson School of Law, Environmental Law Program Colloquium Series, DBEDT Energy Planning and Policy Branch: Insight into Energy Projects in Hawaiʻi (Feb. 23, 2010) [hereinafter DBEDT Colloquium ]. 160 Editorial, Shift in Power Production will be Expensive but Necessary, HONOLULU STAR BULLETIN, Oct. 23, 2008, available at xpensive_but_necessary.html (last visited Apr. 24, 2010).

27 256 Asian-Pacific Law & Policy Journal [Vol. 13:1 Oʻahu consumes the most electric power as compared to the other islands or counties in the State of Hawaiʻi. 162 Because wind power is limited on Oʻahu 163 and abundant on the neighbor islands, the parties to the Hawaiʻi Energy Agreement have proposed the Interisland Wind Project. 164 This project, as originally conceived, was comprised of three components: (1) two large-scale wind farm projects located on the islands of Lānaʻi and Molokaʻi; (2) an undersea cable system; 165 and (3) additional infrastructure and grid upgrades necessary to incorporate the wind energy into current island electrical grids. 166 The State has accepted primary 161 Greg Wiles, UH to Identify Best Route for Undersea Cable, HONOLULU ADVERTISER, June 5, 2009, available at Hawaiʻi Energy Agreement, supra note 145, at 3; see also Matsuura supra note 158. HELCO, which serves the Island of Hawaiʻi (Hawaiʻi County), has a peak load of approximately 180 megawatts and a minimum load of approximately ninety megawatts. Id. at 60. MECO, Maui County s electric system is similar in load and size to the HELCO system, having a peak load of approximately 190 megawatts, and a minimum load of approximately eighty-five megawatts. Id. at 63. Maui County encompasses the islands of Maui, Molokaʻi, Lānaʻi, and Kahoʻolawe. In comparison, HECO, which serves the Island of Oʻahu (City and County of Honolulu) is the largest electricity consumer and possesses a peak load of approximately 1,200 megawatts, and a minimum peak load of approximately 600 megawatts. Id. at While wind resources are not as abundant on Oʻahu as it is on the other Hawaiian Islands, there are still wind resources available on the island of Oʻahu. Wind developer, First Wind, has proposed and successfully developed a wind farm along the Kahuku hillside (located on the North Shore of the island of Oʻahu), which consist of twelve wind turbines. Alan Yonan, Jr., Wind farm in Kahuku powers up, Honolulu Star Advertiser, Mar. 24, 2011, available at _powers_up.html (last visited Nov. 19, 2011). The Kahuku wind farm produces thirty megawatts of energy power for the island of Oʻahu. See id. The Kahuku wind farm also has a fifteen-megawatt battery energy storage system. Id. While the thirty-megawatt output is a small part of HECO s islandwide peak load of 1250 megawatts, the Kahuku wind farm is noted as being part of the incremental move toward decreasing the state s dependence on oil. Id. Apart from further development of wind resources on the Island of Oʻahu, there are other clean energy sources available on the island of Oʻahu such as ocean and solar energy. Interview with Curtis, supra note Hawaiʻi Energy Agreement, supra note 145, at Undersea cable systems include all facilities between Oʻahu and the neighbor islands transmission systems to transfer power between each island s grids. Id. In order to use the wind energy produced on Molokaʻi and Lānaʻi, it is necessary to transmit the wind power produced on those islands by undersea cable to Oʻahu. 166 Additional infrastructure, such as landing sites for the undersea cables is necessary, as well as upgrades to our current islands electric grids. The wind power generated on the islands of Molokaʻi and Lānaʻi will be transferred to Oʻahu as direct current ( DC ) and it will be necessary to have converter stations on each island in order

28 2011] Bryant 257 responsibility for all matters related to the undersea cable system s siting and permitting. Because of the large scope of the Interisland Wind Project and the vast amount of issues implicated, the analysis of this article is meant to apply to renewable energy projects generally, while using the undersea cable component of the Big Wind project merely as an example. 167 Additionally, for purposes of detailing key areas and its environmental and cultural concerns, this paper will focus primarily on the cable components of the project, as they are the lifeblood of the larger Interisland Wind Project. The Interisland Wind Project has the capacity to change Hawaiʻi s social and cultural landscapes forever. 168 Financing is clearly a hot issue as the cable component itself is preliminarily projected to cost $800 million to $1 billion. 169 Although the details of the interisland wind and cable project have yet to be finally determined, the project s proponents and developers appear to be pushing forward with the environmental approval processes, rallying the troops with a cry for the transition from fossil fuels to alternative energy. 170 Originally, the State was rushing to spend $4.94 million in federal stimulus money on consulting contracts and an EIS for the Big Wind and Interisland Undersea Cable project before the April 2012 federal deadline for stimulus funding expires, however since then, the State has requested for additional funds to conduct studies, which broaden the scope of the Interisland Wind Project to include solar, to convert the energy from alternate current ( AC ). DC transmission is used because it best prevents energy loss during transmission. DBEDT Colloquium, supra note With regards to the other components, the wind developers (First Wind and Castle & Cooke) will be primarily responsible for the wind farms on the islands of Molokaʻi and Lānaʻi, and the Hawaiian Electric Companies will be responsible for the infrastructure and grid upgrades necessary to tie the project together. See Hawaiʻi Energy Agreement, supra note 145. Each responsible party is responsible for securing all permits and approvals for their respective components. Id. 168 Sean Hao, Planning Begins for Hawaii Undersea Cable System: Project could Reduce State s Oil Use, but at a Cost of up to $3B, HONOLULU ADVERTISER, Dec. 22, 2009, available at (last visited Apr. 24, 2010). The Interisland Wind Project has been referred to as the priciest, most controversial public utility project in the state s history, even at such an early stage in the project. See Big Wind must be transparent, HONOLULU STAR ADVERTISER, Jun. 19, 2011 available at (last visited Nov. 19, 2011). 169 Sean Hao, supra note 168. Moreover, development of the cable hinges on the construction of two privately developed wind farm projects expected to cost $500 million to $1 billion each, as well as power grid upgrades by HECO that would carry its own additional costs. See id. 170 See id.

29 258 Asian-Pacific Law & Policy Journal [Vol. 13:1 photovoltaic, and geothermal energy, at an additional cost of $2.1 million Purpose, Objectives & Goals of the Project There are currently no transmission lines that tie one island grid to another; rather, each grid is self-sufficient and operates independently. 172 Hawaiian Electric Co., Inc. ( HECO ), which serves the island of Oʻahu, has just recently added wind generation to its system, following MECO and HELCO s lead. 173 The HECO system s daily peak load 174 is approximately 1,200 megawatts; the minimum is approximately 600 megawatts. 175 In a March 17, 2009 news release, Governor Lingle, Castle & Cooke, First Wind Hawaiʻi, and HECO announced an agreement to work together to provide wind energy for Oʻahu. 176 Castle & Cooke planned to develop a 400 megawatt wind farm on the island of Lānaʻi, and 171 Id.; Curtis, supra note 17 ( Big Wind hits road blocks ). The plan has drawn fire from environmental and community groups as well as some government officials for both the substance of the project itself and what is perceived as a lack of transparency in the planning process. See Alan Yonan, Jr., Big Wind discussion stymied, HONOLULU STAR ADVERTISER, Jun. 12, 2011, available at tymied.html (last visited Nov. 23, 2011). 172 Matsuura, supra note 158, at See Alan Yonan, Jr., Wind farm in Kahuku powers up, HONOLULU STAR ADVERTISER, Mar. 24, 2011, available at ml?id= (last visited Nov. 21, 2011). Officials from First Wind LLC, HECO, and the state government recently dedicated the Kahuku wind farm, Oʻahu s first largescale wind farm. Id. The Kahuku wind farm is built upon 575 acres of land, most of which is owned by wind developers First Wind. Id. The Kahuku wind farm feature a dozen 2.5-megawatt wind turbines and are expected to generate about eighty-three million kilowatt-hours annually. Id. First Wind plans to sell the electricity to HECO at a fixed price of 19.9 cents per kilowatt-hour under a purchase power agreement approved by the State Public Utilities Commission. Id. Although the wind farm s thirty megawatt output is a small part of HECO s islandwide peak load, it is part of the incremental move toward reaching the state s clean energy goals. Id. Before the construction and operation of the Kahuku wind farm, MECO and HELCO were the only divisions of the Hawaiian Electric Companies that had wind generation on their systems. Id.; see also Matsuura, supra note 158, at Daily Peak Load refers to the peak of electric consumption. See Matsuura, supra note 158. Minimum refers to the lowest amount of electric consumption. Id. These rates reflect daily usages. Id. 175 Id. 176 Lingle Announces Agreement, supra note 13.

30 2011] Bryant 259 First Wind Hawaiʻi had planned to develop a megawatt wind farm on Molokaʻi. 177 These companies are hoping to negotiate contracts to sell their energy to HECO on Oʻahu. 178 Ultimately, these wind farms would feed into the interisland undersea cable system that would transmit renewable energy power and ultimately connect the major Hawaiian Islands Routes of Contention: Linking the islands of Oʻahu, Maui, Molokaʻi & Lānaʻi) The Hawaiʻi Department of Business, Economic Development & Tourism ( DBEDT ), 180 as the agency proposing the Interisland Undersea Cable, contracted with the University of Hawaiʻi s School of Ocean and Earth Science and Technology ( SOEST ) 181 to conduct a technical report on the feasibility of preferred and alternate undersea cable routes connecting the islands of Oʻahu, Maui, Molokaʻi, and Lānaʻi; their final 177 Id. 178 Id. 179 DBEDT Colloquium, supra note 159. In the 1980s, Puna Geothermal proposed a similar undersea cable project to connect the various islands and provide geothermal energy generated on Hawaiʻi Island to Oʻahu; however, the plan fell through before being implemented. See generally Tonya L. Boyd, Geo-Heat Center, Hawaii and Geothermal: What has been Happening, GHC Bulletin (2002). 180 Hawaiʻi State Dept. of Econ Dev. & Tourism, Aloha from DBEDT!, (last visited Nov. 21, 2011). DBEDT provides the economic and statistical expertise that guides State economic development efforts. Id. It generates important information for business and industry about their markets and the economic forces shaping the future. Id. 181 SOEST was established in 1988 in recognition of the need to realign and further strengthen the education and research resources available within the University of Hawaiʻi. About the School, SCHOOL OF OCEAN AND EARTH SCIENCE AND TECHNOLOGY AT THE UNIVERSITY OF HAWAIʻI AT MĀNOA (Nov. 21, 2011, 7:51 PM), Its vision is to serve society by acquiring and disseminating new knowledge about the Ocean, Earth and Planets, and to enhance the quality of life in the State and the Nation by providing world-class education, contributing to a high-tech economy, and promoting sustainable use of the environment. Id.; School of Ocean and Earth Science and Technology at the University of Hawaiʻi at Mānoa, Hawaii Inter-island Cable Project Ocean Floor Survey Task 2d Technical Final Report (Nov. 2009) available at (last visited Nov. 21, 2011) [hereinafter SOEST Report]. SOEST was contracted by DBEDT to conduct a feasibility study by determining whether laying a power transmission cable on the ocean floor between the islands would be physically possible. Id. at 3-4.

31 260 Asian-Pacific Law & Policy Journal [Vol. 13:1 report was issued in November The preferred and alternative routes identified by SOEST are depicted below. The figure above identifies the preferred (black) and alternate (dashed) cable routes. White dashed lines show other routes surveyed. Pink denotes the existing telecom cables; red dot denotes any observed cable crossing. The blue boxes are the bottom fish refuges. Red boxes or circles indicate dump areas. The ruled areas denote the humpback whale sanctuary. 183 As originally identified in the SOEST report, the recommended route connecting the islands of Oʻahu and Molokaʻi is via a Kāneʻohe to Northwest Molokaʻi route See generally, SOEST Report, supra note Picture taken from the SOEST Report, supra note 181, at SOEST Report, supra note 181, at 14.

32 2011] Bryant 261 This recommended cable route (shown above) 185 comes ashore on Oʻahu at the Kāneʻohe Marine Air Station where a transmission cable would connect to HECO s Koʻolau substation. 186 The Molokaʻi landing station for the cable would be at ʻĪlio Point on the northwestern point of the island. 187 While SOEST concluded that the cable is feasible, it raised concerns about environmental and engineering challenges. 188 D. Proposed Permitting & Approvals Processes: Working Through the HEIS Process The State of Hawaiʻi, HECO, and the developers of the proposed wind farms on the islands of Lānaʻi and Molokaʻi have pledged to do a 185 Image taken from SOEST Report, supra note 181, at 14. This route will be the focus of the Environmental and Cultural Concerns section, see infra Part IV, III.B; see also infra Part V.A. 186 SOEST Report, supra note 181, at Id. at 15. Other alternative routes were also identified and analyzed. An alternative route from Kāneʻohe to NW Molokaʻi was considered but would cross the Waimanalo-Makapuʻu Shelf which is subject to intense fishing and anchoring, crosses the SE Oʻahu portion of the Humpback Whale Sanctuary, and precious coral beds. In the event that NW Molokaʻi is excluded, a route from Kāneʻohe to Lānaʻi is recommended. The Kāneʻohe to NW Molokaʻi route appears to be the favored route by proponents of the Interisland Cable Project because it is the easiest and less intrusive. Id. 188 Id. at 18.