Real Estate & Property Law

2008 Land Use In Review: Environmental Law

By Robert Thomas (inversecondemnation.com)

We aren't officially an "environmental law" blog, and when we do cover the issue, it is mostly on the periphery.  However, in 2008, we hit a couple of significant issues that had some relevance to land use law. 

First, in the U.S. Supreme Court's first decision of the Term, Winter v. Natural Resources Defense Council, Inc., No. 07-1239 (Nov. 12, 2008), the Court held that prior to issuing preliminary injunctions preventing the Navy from training with mid-frequency active sonar, the lower courts must balance the equities and the public interest, and that the Navy's interest in training for deployment clearly outweighed the environmental concerns of the plaintiffs.  Why did a land use law blog care about a case involving the Navy's use of sonar in training exercises off the California coast?  First, as we explained here, the case is philosophically interesting because of the arguments regarding when courts should defer to the judgment of the executive branch and the military. Second, we filed an amicus brief in the case on behalf of nine retired Admirals and several service support groups (posted here), supporting the Navy's arguments. My Damon Key colleague Mark Murakami and I even published an op-ed in the Honolulu Advertiser about the decision.

Second, in Nuuanu Valley Ass'n v. City & County of Honolulu, No. 28599 (Oct. 24, 2008), the Supreme Court of Hawaii clarified when a project that is not being built on state or county land meets the definition of "use" of such lands triggering review under the Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343. The developer of private residential land in urban Honolulu sought to subdivide the property, which required hooking up new drainage system to existing lines. The court held that the connection of new drainage lines to an existing system did not meet the definition of "use" of state or county land, even though the existing system is public. More here.

Finally, the Hawaii Intermediate Court of Appeals, in Ohana Pale Ke Ao v. Board of Agriculture, State of Hawaii, No. 27855 (May 21, 2008), held that the State Board of Agriculture was required to undertake an Environmental Assessment under Hawaii state law prior to approving a permit for the importation of genetically-modified algae for processing in facility on state-owned land at which non GMO algae was already being processed.  More here.

Full post as published by inversecondemnation on January 04, 2009 (boomark / email).