I: The Environmental Court and Judge Joseph Cardoza
If you’ve lived on Maui for more than a year, you’ve most likely not only heard the arguments pro and con on cane burning by Hawaii Commercial & Sugar (HC&S), but have also formed your own opinion. No longer just tinder to ignite public debates over Maui’s environment and land use, the controversial cultivation method matter will be the first case to be heard in Maui County’s branch of the new Hawaii Environmental Court.
Hawaii is one of only two states to have an such a court (Vermont is the other), and while this court does not have any special powers not granted to other state courts, it does seek to hear all the issues related to Hawaii’s environment in one distinct place.
Set up in July 2014 by Act 218, the court officially opened on July 1, 2015. “The legislature finds that environmental disputes are currently dealt with in a variety of courts,” states Act 218. “This organizational structure inadvertently promotes inconsistent application of the wide variety of environmental laws.”
The purpose of the statute, said Michael D. Wilson, Hawaii Supreme Court Associate Justice in an Aug. 14, 2015 Honolulu Star Advertiser story, “is to recognize that we’re facing environmental problems that need to be addressed that aren’t being addressed, and in order to take care of these very pressing issues we need to have a court that can address land, air, water, the environment.” Wilson also expressed the desire for legal consistency in environmental matters. He named the high profile Superferry dispute (2007-2009) an an example of a case that “would have benefited from being heard in the environmental court.”
Circuit Chief Judge Joseph E. Cardoza of Maui, expressed the view widely shared among those who attended the statewide meetings prior to the legislation, when he described the environmental court as “historic.”
And indeed, it will be Judge Cardoza who will hear the cane burning case–Civil No. 15-1-0351(3)–that is set to begin in his courtroom soon.
A motion to dismiss had been scheduled to be heard on Sept. 16. But according to Lance D. Collins, the attorney for the plaintiffs, Cardoza has already told both sides to go into mediation. Collins said there will be a “short status conference” regarding mediation on Sept. 16.
Cardoza is a well known figure in Maui legal circles. He was selected to serve as Chief Judge and Administrative Judge of the Second Circuit (County of Maui) in May 2012. Prior to that, Cardoza had been a circuit court judge on Maui since 1999. He was previously Maui County’s prosecuting attorney and later founded the law firm of Cardoza and Fukuoka. He’s a past president of the Maui County Bar Association and Hawaii Prosecuting Attorneys Association.
Perhaps his best known prior judicial action was the temporary restraining order he issued in August 2007 barring the Superferry from accessing Kahului Harbor. That action suspended the Maui service. It was one of a series of events that led to the shutdown of the Superferry.
As for the outcomes, Cardoza could have ruled in favor of halting cane burning by finding that there is sufficient evidence that the defendants–the Hawaii Department of Health (DOH) and Alexander & Baldwin LLC (A&B, the parent company of HC&S) have not complied with the law.
Or he could have ruled that the defendants are in compliance and they may continue the practice which has been an established harvesting procedure here for the better part of a century.
But he seems to have already chosen a third alternative: some form of mediation in which the parties would meet to arrive at a solution and report back to the court.
II: Stop Cane Burning and the grounds for their suit
Bringing the first legal challenge to the long established agricultural practice here is Stop Cane Burning, an unincorporated association founded in 2011 which claims to have 1,500 members. The group and plaintiffs Trinette Furtado, Karen Chun and Bradley Edwards are represented by attorney Lance D. Collins.
On July 30, 2015, Collins filed a motion for a preliminary injunction to end the harvesting practice that generates smoke and black ash–popularly known as “Maui Snow.” The 912-page document sets out the legal arguments for their assertion that the plaintiffs have suffered multiple and serious adverse health impacts from the practice.
According to the documents filed with the court, Furtado was born and raised on Maui. Three generations of her family worked for the sugar plantation. The suit claims that Furtado and her daughter have suffered physically from smoke and other air pollution caused by agricultural burning.
Chun, a long-time resident of Maui, was an avid and medal winning outrigger canoe paddler until she was diagnosed with a pulmonary disease caused by agricultural burning near her home, court documents assert. They also state that Chun’s paddling activities are restricted due to her chronic pulmonary disease.
Edwards was born and raised in Hawaii. For the last 15 years, he’s worked with at-risk children and families on Maui. The filing alleges that he and his son have suffered physically from smoke and other air pollution caused by agricultural burning.
Also joining in the suit is Joy D. Brann, who holds a master’s degree in public health from the University of Hawaii at Manoa. From 1994 to 2012, she served as a public health outreach educator and contract administrator for the State of Hawaii Department of Health (DOH).
Her sworn statement asserts cane burning has been linked to an increased incidence of asthma in nearby populations, genotoxicity in field workers, and the causation of cancer. It also claims that biogenic silica fibers resulting from cane burning posed a substantial risk to the health of sugar cane workers. “BSF fibers had physical dimensions believed to pose the greatest risk of asbestosis and lung cancer,” she says, according to court documents.
The plaintiffs seek a judicial decision that the air pollution control regulatory system that permits open air agricultural burning is unlawful.
Among the multiple points of law raised are claims that the plaintiffs’ constitutional rights to a clean and healthful environment have been violated and that the DOH did not comply with all applicable rules when granting agricultural burn permits. According to the suit, as far back as 1971 the DOH ordered sugar plantations “to abate all burning of cane” because of the health hazards known to the DOH at that time.
The legal action requests that the court stop the DOH from permitting A&B’s agricultural burning on Maui and require the the state agency to declare existing permits for agricultural burning on Maui were inappropriately issued and therefore void. It also would require A&B itself and through its trade name HC&S, to cease agricultural burning operations in Maui.
The plaintiffs’ suit make the following claims:
• The Director (of the DOH) operated under an unlawful delegation of lawmaking power
• Permitting A&B’s agricultural burning activities violated Plaintiffs’ constitutional rights to a clean and healthful environment
• Permitting A&B’s agricultural burning activities violated the public trust
• The Director’s implementation and establishment of an exempt classification for agricultural burning operations violated Plaintiffs’ constitutional equal protection rights
• The Director’s permitting regime violated Hawaii’s Environmental Policy as set forth by law
• The Director’s issuance of agricultural burning permits to A&B on March 6, 2015 triggered the need for environmental review under Hawaii law.
III: Response by DOH and A&B
Officials with the state Department of Health wouldn’t comment for this story.
“The Department of Health takes its responsibility to protect public health very seriously and continues to implement and enforce all applicable state and federal air pollution laws and regulations,” Janice Okubo, the DOH’s Communications Director, said in an email after asking for a comment on the lawsuit. “Unfortunately, we are unable to provide comments on the pending lawsuit regarding the cane burning activities on Maui at this time.”
The office of the State Attorney General is representing the DOH. The AG’s office filed its response to the lawsuit with the court on Aug. 3, citing 16 defenses including sovereign immunity, lack of jurisdiction and lack of standing.
Alexander & Baldwin, the other defendant, is represented by the Honolulu law firm Case Schutte LLP. On Aug. 6, Case Schutte filed a 91-page motion to dismiss, saying in essence that the court lacks jurisdiction in this matter for a number of complex and technical reasons, especially as related to Federal EPA regulations. The motion to dismiss also asserted that should the court decide otherwise and void the HC&S permit, it should also void the more than 100 other agricultural burn permits issued by the DOH. The DOH joined this motion, an action which is called a “substantive joinder.”
As for A&B, Rick Volner–the Maui plantation general manager for HC&S–responded to the suit in an August news release. “We are disappointed by the series of legal maneuvers recently orchestrated by Stop Cane Burning in its single-minded quest to end harvesting techniques that have been carefully regulated and essential to HC&S’ continued operations,” he wrote.
Volner noted the group sued the DOH demanding the stoppage of cane burning and later added HC&S as a defendant, then later filed another action, demanding the immediate termination of cane burning pending resolution of their lawsuit.
“The group claims that all it wants is for HC&S to harvest in other ways, and that it does not want to shut down our operation,” Volner said. “The problem is this: if their demand for an immediate ban on cane burning is granted, they will get their way by default–their action will trigger the closure of HC&S. We cannot continue to farm knowing we cannot burn to harvest the crop for some unknown period of time, while their lawsuit is being pursued.”
For Volner and HC&S, the stakes are high.
“At risk,” Volner said, “are the 36,000 acres of sugarcane farmland that provide open space and vistas that our visitors and all of us enjoy. What becomes of our 750 employees and their families and the thousands of residents whose jobs also depend on HC&S, if they suddenly have no income to put dinner on the table or to pay their mortgages?
“We want to be a good neighbor and have worked actively with DOH to adhere to a complex set of burn procedures, which we implement field by field, to minimize the impact to our community,” he continued. “We have invested millions of dollars exploring different harvesting techniques and alternative crops, none of which have yet proven to be viable for 36,000 acres.”
In fact, HC&S insists that its “survival” depends on cane burning.
“The ability to continue cane burning remains a critical factor in the survival of our company,” Volner said. “We continue to look for new crops, evaluate other sugar by-products and biofuel options and research cutting edge renewable energy technologies… We intend to fight this request for an injunction, which we believe is an attack on the farming community, local residents and businesses and our very existence as a company.”
But that was all before Cardoza ordered mediation. As for what happens now, that’s anyone’s guess.
Cover design: Darris Hurst
Photo of Maui cane burn: Sean M. Hower
Photo of Puunene Mill: Joanna Orpia/Wikimedia Commons