Cox, Doak C.

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RG:0046THE HAWAll OFFICE OFENVIRONMENTAL QUALITY CONTROL,ENVIRONMENTAL COUNCIL, ANDENVIRONMENTAL QUALITY COMMISSION--BACKGROUND AND STATUTORY PROVISIONSByDoak C. Cox, DirectorUniversity of Hawaii, Environmental CenterNovember 1981IntroductionFor its consideration at at public hearing held on 12 November 1981, in connectionwith possible changes in the placement of the Environmental Council and of the Officeof Environmental Quali ty Control (OEQC) with which it is associated, the Councilrequested a review of the history of statuatory provisions regarding the two bodiesand of their background. This review covers also the Environmental Quality Commission,whose role is closely connected with those of the Council and OEQC, and it posesand discusses the implications of possible answers to answers to a number of questionsthat should be addressed when possible changes in the placement of the three bodiesare considered.A draft of the review was made available to the Council prior to its hearing,and a briefer revision was presented at the hearing. The present version has beenprepared for the use of such legislative committees as may be involved in the considerationof changes in the statuatory provisions regarding the three bodies. Although testimonywas presented at the Council's hearing implying answers to the questions posed, answersare not presumed in the review.Background to the statute establishing the OEQC and CouncilThe establishment of the OEQC and Council resulted from the "environmentalmovement" that was manifest not only in Hawaii but even more strongly in parts ofthe mainland. Other results of the "movement" were the passage of the NationalEnvironmental Policy Act; the establishment of the Council on Environmental Quality,Environmental Protection Agency, and environmental impact statement system ofthe federal government, and similar actions in various mainland states. The processfrom which plans for the establishment of the Hawaiian institutions emerged beganbefore the national institutions were established and before the first "Earth Day"was scheduled, and the plans were not developed in emulation of actions taken orto be taken elsewhere.The process may be considered to have been initiated as a result of a symposiumon the Impact of Technology on the Environmental held in 1969 under the auspicesof the Associated Students of the University of Hawaii. Discussions in the symposiumreinforced opinions that Hawaii was not immune to the kind of environmental problemsthat were being recognized elsewhere, that the problems merited serious attention,and that even the University with its strengths in the many disciplines bearing onsuch problems was ill prepared to provide transdisciplinary guidance to attempts tocope with them. As a result, the Dean of the Graduate Division and Director of Researchof the University established a rather large Committee on Ecology and Man to investigatewhat might be done within the University to provide appropriate guidance. The committee,recognizing early the environmental competence that was available in the variouscampuses and smaller units of the University, considered that the principal need wasfor some specific means for stimulation and coordination of environment-relatedUniversity activities.Initially restricted to the potential Unive1."sity role, the attention of the committeewas broadened through the recognition of the Governor, John Burns, and then SenatorNadao Yoshinaga, that the state government also should prepare itself to cope betterwith the problems; and representatives of the Governor and the Senator were addedto an executive committee of the Committee for Ecology and Man to formulate proposalsfor dealing with environmental problems at both State and University levels. Recognizing2that coping with environmental problems was not, and could not effectively be, theresponsibility of a single State department, a coordinating mechanism was seen tobe the principal need at the State as well as the University level. The result of theactivities of the Executive Committee and its parent body was the preparation ofa bill that was introduced in the 1970 session of the Legislature, was passed withoutsignificant opposition and very Ii ttle change, and was approved by the Governor asAct 232.This Act, the Environmental Quality Control Act, called for the establishmentand support of the Office of Environmental Quality Control, the Environmental Council,and also the Environmental Center at the University.Initial statutory provisions for OEQC and CouncilAct 132 (1970) now Chapter 341 of Revised Laws of Hawaii, began with thefollowing statements of finding and purpose:The legislature finds that the quality of the environment is asimportant to the welfare of the people of Hawaii as is theeconomy of the State. The legislature further finds that thedetermination of an optimum balance between economicdevelopment and environmental quality deserves the mostthoughtful consideration, and that the maintenance of theoptimum quality of the environment deserves the mostintensive care.The purpose of this chapter is to stimulate, expand andcoordinate efforts to determine and maintain the optimumquality of the environment of the State.The Act called for placement of the OEQC in the Office of the Governor, forits service to the Governor "in an advisory capacity on all matters relating to environmentalquality control," and for its implementation of the Act's provisions generally. TheAct further provided that the OEQC was to be headed by a Director, who was to "havesuch powers delegated by the Governor as are necessary to coordinate, and when requestedby the Governor, to direct pursuant to the Administrative Procedures Act all stategovernmental agencies in matters concerning environmental quality."The Act also called for the establishment of the Environmental Council andprovided that the OEQC Director was to be its Chairman and that its members, notto exceed 15 in number, were to include: "representatives from mass media, andrepresentatives from relevant disciplines, for example, environmental design, natural,physical and social sciences, technologies, social ethics and philosophy, representativesof the university, representatives from business and industry, public and private schoolsand colleges, and voluntary community group s and associations."In addition to more general authority, th~ Act provided that, with respect tothe environment, the OEQC Director was to:1. Direct problems to the attention of the University community throughthe Environmental Center and to residents of the State through the Council;-,32. Develop a system for monitoring;3. Conduct or arrange for the conduct of research;4. Encourage acceptance of proposed legislative and administrative actions,and receive notice of complaints concerning problems through the Council;5. Recommend long-range programs;6. Recommend legislation;7. Initiate public educational programs; and8. Offer advice generally.Background and statutory provisions for the CommissionIn the establishment of the State Environmental Impact Statement (EIS) systemand the Environmental Quality Commission overseeing the system, both the OEQCand the Council played definite although indirect roles.On the advice of the OEQC Director, the Governor issued in 1971 an executiveorder establishing an EIS system applicable to actions proposed by state agencies,patterned more or less after the federal system established as required by the NationalEnvironmental Policy Act. Several bills were introduced in the 1973 legislative sessioncalling for the establishment of a system with broader applicability. Action on themwas defered but, as recommended by the Council, the legislature passed a resolutioncalling for the establishment of a Temporary Commission on Environmental Quality.In its report, submitted in November 1973, the Temporary Commission provided draftsof several bills whose passage it recommended, including one relating to an expandedEIS system. This bill and four others relating to the same matter were consideredby the 1974 legislature, and after amendment one was passed and approved by theGovernor as Act 246.Although, as submitted, the bill would have placed the responsibilities for developingEIS-system regulations and for hearing appeals on the acceptability of EIS's in theOEQC, as amended and passed, it called for the establishment of a separate EnvironmentalQuality Commission and placed the responsibilities in this Commission. The Act,now Hawaii Revised Statutes, Chapter 343, "Environmental Quality Commission andEnvironmental Impact Statements," provided that the Commission, like the OEQC,was to be placed in the Office of the Governor. The Commission was to have tenmembers appointed by the Governor, including "representatives of labor, management,the construction industry, environmental interest groups, real estate groups, and thearchitectural, engineering, and planning professions" and, in addition, ex officio butvoting, the OEQC Director. Its Chair was to be appointed by the Governor.Amendments of initial statutory provisionsThe environmental legislation enacted in 1974 included, not only Act 246, butalso an Environmental Policy Act, much abbreviated from a version proposed by theTemporary Commission, and as an accompaniment, an Act calling for an enlargement4of the role of the Environmental Council. As provided by this act (Act 248, 1974),the Council, in addition to its other duties, was instructed to "monitor the progressof State, County, and federal agencies in achieving the State's environmental goals,and to make an annual report with recommendations for improvement to the governor,the legislature, and the public." All state and county agencies were required to "cooperatewith the Council and assist in the preparation of such a report by responding to requestsfor information made by the Council."The act for Environmental Quality Control was amended in 1978 to delete, fromthe responsibilities of the OEQC Director, the responsibility of developing a systemof environmental monitoring, a function that has actually been performed by the Departmentof Health.The acts relating to the OEQC, to the Council and to the Commission wereamended in 1980 to shift both bodies from the Office of the Governor to the Departmentof Health for administrative purposes only. There have been other amendments ofthe EIS act, but these have affected only the coverage and operation of the EIS systemand not the structure or functions of the Commission.Questions relating to possible further amendmentsAny consideration of further amendments to the statutory provisions for theOEQC, the Council, and the Commission should probably begin with the findings expressedin the Environmental Quality Control Act. If it were no longer true that "the determinationof an optimal balance between economic development and environmental quality controldeserves the most thoughtful consideration, and that the maintenance of. the optimalquality of the environment deserves the most intensive care," there would seem tobe no further need for the OEQC or the Council, or for the EIS system and the Commissionthat administers it. Indeed, it would seem that the Environmental Policy Act is withoutsignficance.If, however, the findings are still valid, the next question to consider with respectto the OEQC is whether the maintenance of environmental quality is still a matterwith which all state departments should be concerned and which requires interdepartmentalcoordination, or whether this is no longer the case.If the coordinating role is no longer important, there is no reason why the OEQCshould not be dissolved in favor of, or its role reduced to that of, an agency in whateverdepartment is considered to be solely responsible for environmental quality. If thecoordinating role is still important, there is the further question whether the rolecan be exercised best by the OEQC with its original placement in the Office of theGovernor, with its present placement solely for administrative purposes in the Departmentof Health, or with its placement somewhere else, or by some other body.The original Environmental Quality.Control Act provided for both the establishmentand the initial support of the position of the OEQC Director. Hawaii was fortunatein that, until recently, the continuing support for the position was actually providedby the Federal Environmental Protection Agency. As a consequence, no provisionhas been made in the state budget subsequently for the support of the position. Thepowers of the Director have now been delegated by the Governor to the Directorof Health and by him to the Deputy Director for Environmental Programs. If theinterdepartmental coordinating role and relatively independent status of the OEQC5remain important, it must obviously be questioned whether an independent Directorshould not again be appointed with support for the position provided in the budget.Even if the position of the Director again becomes a separate one, some of theresponsibili ties remaining under the amended statute seem questionable, for example:1. That to "institute public education programs"--a without reference tothe functions of other departments for example the Department of Education;and2. That to "encourage public acceptance of proposed legislative and administrativeactions concerning ecology and environmental quality"--without qualificationas to the mer it of the proposals.If the OEQC were to be abolished, there would seem little purpose to continuingthe Council, and if it were to be placed other than solely for administrative purposesin some department, the Council's role might well be performed by some already existingbody advisory to that department. If, however, the OEQC is to maintain its relativelyindependent status and it coordinating role, it should be considered whether the rolecan be wisely performed without the kind of external guidance that is provided bythe Council.Placement of the Council in the Office of the Governor was implied by the OEQC'soriginal placement there and not specified by the Environmental Quality ControlAct. Transfer of the Council to the Department of Health would seem implied bythe 1980 amendment of the act transferring the OEQC there, but the amendmenthas been interpreted as not transferring the Council. Certainly if the guidance ofthe Council to the OEQC is still needed, the placement of the Council should be identicalto that of OEQC.Two questions, at least, should be considered with respect to the Council's functions:1. Whether it should be responsible, as at present, for the preparation ofthe annual report on environmental quality--a function actually performedby the OEQC; and2. Whether it should be chaired by the OEQC Director and meet only at hiscall, as now provided, or whether it should select its own Chair (or thechair should be appointed by the Governor) and it should meet on the callof either the Chair or the Director.In considering possible amendments to the statutory provisions regarding theCommission, it seems desirable at the outset to recognize that, in one respect, theCommission resembles the combination of the OEQC and the Council. It is an executiveagency like the OEQC, but one that is composed of members appointed from the publiclike the Council. It was clearly the intent of the 1974 legislature not to place in theOEQC the powers with respect to the EIS system that were placed in the Commission.However, now that the system has been in use for several years, it would seem appropriateto consider again whether the responsibility for operation of the system might notbe placed in the OEQC and the responsibility for making policy changes in the operationof the system (within the statutory provisions) might not be placed in the OEQC withthe advice of the Council or in the Council itself.'.'.6Concluding remarksIn considering possible amendments to the statu ory provisions relating to theOEQC, the Council, and the Commission, their pe formance should be, and no doubtwill be taken into account. I do not intend to comment in detail on their performance.However, brief comment seems warranted, because some aspects of the performanceas well as the prescription of their functions have sometimes been characterized asrepresenting overreactions to environmental problems, disregarding economic aspects.Let me refer again to the aim indicated in the Environmental Quality ControlAct to achieve "an optimum balance between economic development and environmentalquality." Unquestionably, the optimization of this balance requires tradeoffs betweenimmediate economic gain and preservation of natural environmental qualities. However,in the performance of the three bodies there is no evidence of environmental extremismor disregard of economic benefits. There have been cases of proposed environmentalmanagement actions that were proposed, not only by environmental concerned membersof the public, but by governmental agencies; that would have been extremely costly;that might be environmentally sound in some environment, but not in our tropical,oceanic islands; and that were avoided principally through the coordinating effortsof the OEQC backed by the Council. Through their efforts We were spared the expenditureof millions of tax dollars to achieve supposed environmental benefits that would not,in fact, have been produced.I suggest that in considering possible amendments to the statutory provisionsrelating to the three bodies, their performance should be judged in terms of the optimumbalance described in the Environmental Quality Control Act, in other words in termsof overall, long-term human welfare in Hawaii.

The Hawaii Office of Environmental Quality Control, Environmental Council, and Environmental Quality Commission -- Background and Statutory Provisions

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The Hawaii Office of Environmental Quality Control, Environmental Council, and Environmental Quality Commission -- Background and Statutory Provisions

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