   _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


                                                             Electronically Filed
                                                             Supreme Court
                                                             SCOT-XX-XXXXXXX
                                                             09-NOV-2018
                                                             02:02 PM




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


           IN THE MATTER OF CONTESTED CASE HEARING RE
      CONSERVATION DISTRICT USE APPLICATION (CDUA) HA-3568
FOR THE THIRTY METER TELESCOPE AT THE MAUNA KEA SCIENCE RESERVE,
       KAʻOHE MAUKA, HĀMĀKUA, HAWAIʻI, TMK (3) 404015:009


      SCOT-XX-XXXXXXX, SCOT-XX-XXXXXXX, and SCOT-XX-XXXXXXX

       APPEAL FROM THE BOARD OF LAND AND NATURAL RESOURCES
                 (BLNR-CC-16-002 (Agency Appeal))

                            NOVEMBER 9, 2018

                  DISSENTING OPINION BY WILSON, J.

                           I.    Introduction

          The degradation principle.        The Board of Land and

Natural Resources (BLNR) grounds its analysis on the proposition

that cultural and natural resources protected by the

Constitution of the State of Hawaiʻi and its enabling laws lose

legal protection where degradation of the resource is of

sufficient severity as to constitute a substantial adverse


                                     1
   _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


impact.    Because the area affected by the Thirty Meter Telescope

Project (TMT or TMT project) was previously subjected to a

substantial adverse impact, the BLNR finds that the proposed TMT

project could not have a substantial adverse impact on the

existing natural resources.      [BLNR Decision and Order, p. 219,

COL 180]   Under this analysis, the cumulative negative impacts

from development of prior telescopes caused a substantial

adverse impact; [BLNR Decision and Order, p. 220, COL 183]

therefore, TMT could not be the cause of a substantial adverse

impact.    As stated by the BLNR, TMT could not ”create a tipping

point where impacts became significant.”         [BLNR Decision and

Order, p. 222, COL 200]     Thus, addition of another telescope—

TMT—could not be the cause of a substantial adverse impact on

the existing resources because the tipping point of a

substantial adverse impact had previously been reached.

           Appellants object to the principle advanced by the

BLNR that “without the TMT Project, the cumulative effect of

astronomical development and other uses in the summit area of

Mauna Kea have previously resulted in impacts that are

substantial, significant and adverse” [BLNR Decision and Order,

p. 220, COL 183] and, therefore, “[t]he level of impacts on

natural resources within the Astronomy Precinct of the [Mauna

Kea Science Reserve (MKSR)] would be substantially the same even

in the absence of the TMT Project[.]”        [BLNR Decision and order,

                                     2
   _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


p. 221 , COL 195]    In other words, BLNR concludes that the

degradation to the summit area has been so substantially adverse

that the addition of TMT would have no substantial adverse

effect.   Thus, while conceding that Mauna Kea receives

constitutional and statutory protection commensurate with its

unchallenged position as the citadel of the Hawaiian cultural

pantheon, the BLNR applies what can be described as a

degradation principle to cast off cultural or environmental

protection by establishing that prior degradation of the

resource—to a level of damage causing a substantial adverse

impact—extinguishes the legal protection afforded to natural

resources in the conservation district.         The degradation

principle ignores the unequivocal mandate contained in Hawaiʻi

Administrative Rules (HAR) § 13-5-30(c)(4) prohibiting a

Conservation District Use Permit (CDUP) for a land use that

would cause a substantial adverse impact to existing natural

resources.   The BLNR substitutes a new standard for evaluating

the impacts of proposed land uses, a standard that removes the

protection to conservation land afforded by HAR § 13-5-30(c)(4).

Using the fact that the resource has already suffered a

substantial adverse impact, the BLNR concludes that further land

uses could not be the cause of substantial adverse impact.

Under this new principle of natural resource law, one of the

most sacred resources of the Hawaiian culture loses its

                                     3
   _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


protection because it has previously undergone substantial

adverse impact from prior development of telescopes.             The

degradation principle portends environmental and cultural damage

to cherished natural and cultural resources.          It dilutes or

reverses the foundational dual objectives of environmental law—

namely, to conserve what exists (or is left) and to repair

environmental damage; it perpetuates the concept that the

passage of time and the degradation of natural resources can

justify unacceptable environmental and cultural damage.1



     1
           The duty to preserve and rehabilitate in perpetuity a
resource such as Kahoʻolawe that has, over time, been severely degraded
by government action is a duty potentially undermined or extinguished
under the new degradation principle. See Hawaiʻi Revised Statutes
(HRS) § 6K-3(a)(3) (1993) (requiring Kahoʻolawe to be preserved and
rehabilitated). The principle is directly contrary to the purpose of
the federal National Environmental Policy Act, which notes the
obligation of government to protect and restore the environment:
          [I]t is the continuing responsibility of the Federal
          Government to use all practicable means, consistent with
          other essential considerations of national policy, to
          improve and coordinate Federal plans, functions, programs,
          and resources to the end that the Nation may—

                (1) fulfill the responsibilities of each generation
                as trustee of the environment for succeeding
                generations;

                (2) assure for all Americans safe, healthful,
                productive, and esthetically and culturally pleasing
                surroundings;

                (3) attain the widest range of beneficial uses of the
                environment without degradation, risk to health or
                safety, or other undesirable and unintended
                consequences;

                (4) preserve important historic, cultural, and
                natural aspects of our national heritage, and

                                                          (continued . . .)

                                     4
   _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


          It is noteworthy that the party responsible for the

substantial adverse impact to this protected resource is the

State of Hawaiʻi (State).      It is uncontested that the State

authorized previous construction within the Astronomy Precinct

of the MKSR that created a substantial adverse impact.            Thus,

the party that caused the substantial adverse impact is

empowered by the degradation principle to increase the damage.

Now the most extensive construction project yet proposed for the

Astronomy Precinct—a 180-foot building 600 feet below the summit

ridge of Mauna Kea—is deemed to have no substantial adverse

impact due to extensive degradation from prior development of

telescopes in the summit area.       The degradation principle

renders inconsequential the failure of the State to meet its

constitutional duty to protect natural and cultural resources

for future generations.       It renders illusory the public trust

duty enshrined in the Constitution of the State of Hawaiʻi and


(. . . continued)

                maintain, wherever possible, an environment which
                supports diversity and variety of individual choice;

                (5) achieve a balance between population and resource
                use which will permit high standards of living and a
                wide sharing of life’s amenities; and

                (6) enhance the quality of renewable resources and
                approach the maximum attainable recycling of
                depletable resources.

42 U.S.C. § 4331(b) (2012).




                                     5
   _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


heretofore in the decisions of this court to protect such

resources.   And its policy of condoning continued destruction of

natural resources once the resource value has been substantially

adversely impacted is contrary to accepted norms of the

environmental rule of law.

      II. The BLNR and the Majority Fail to Comply with the
Requirement of HAR § 13-5-30(c)(4) that the Impact of the Thirty
  Meter Telescope upon the Existing Adversely Impacted Cultural
                      Resource Be Considered

          HAR § 13-5-30(c)(4) prohibits a proposed land use in

the conservation district that will cause a substantial adverse

impact to existing natural resources:         “In evaluating the merits

of a proposed land use, . . . [t]he proposed land use will not

cause substantial adverse impact to existing natural resources

within the surrounding area, community, or region.”           Because

“natural resources” includes cultural resources,2 land use cannot

occur in the conservation district if it causes a substantial

adverse impact to existing cultural resources.          HAR § 13-5-

30(c)(4) sets the standard to evaluate whether the proposed land

use project should be permitted.         Under this standard, the

impact of the proposed land use must be considered with an


     2
           “Natural resource” as defined by the version     of HAR § 13-5-
2 in effect when Appellees submitted their Conservation     District Use
Application included “resources such as plants, aquatic     life and
wildlife, cultural, historic, and archaeological sites,     and minerals.”




                                     6
   _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


understanding of the condition of the existing natural

resources.   If the land use will cause a substantial adverse

impact to the existing natural resources, it is prohibited.             The

degradation principle violates HAR § 13-5-30(c)(4) by removing

the requirement to consider the effect of a proposed land use on

the existing natural resource.       The degradation principle

reverses the requirement that the impact of the new land use be

considered; instead, the degradation principle requires that the

impact not be considered once the existing resource has suffered

a substantial adverse impact.       Consideration of the impacts of a

proposed land use becomes irrelevant because the existing

resource is already substantially degraded 3.

          It is undisputed that the relevant area of the TMT

project has suffered a substantial adverse impact to cultural

resources due to the construction of twelve4 telescopes:            “[T]he

     3
           The Majority states that the “BLNR does not have license to
endlessly approve permits for construction in conservation districts,
based purely on the rationale that every additional facility is purely
incremental. It cannot be the case that the presence of one facility
necessarily renders all additional facilities as an ‘incremental’
addition.” Majority Opinion at 55 (quoting Kilakila ʻO Haleakalā v.
Bd. of Land & Nat. Res., 138 Hawaiʻi 383, 404, 382 P.3d 195, 216
(2016)). However, the increment with the greatest impact of all
telescopes, TMT, is deemed to not cause a substantial adverse impact
because prior increments of telescope construction cumulatively caused
a substantial adverse impact.
     4
           The Astronomy Precinct of the MKSR “currently has eight
optical / infrared observatories, three submillimeter observatories
and a radio telescope.” [BLNR Decision and Order p. 219, COL 179]
Eight of these facilities became operational between 1970 and 1992;
four became operational between 1996 and 2002. [BLNR Decision and

                                                          (continued . . .)

                                     7
   _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


cumulative effects of astronomical development and other uses in

the summit area of Mauna Kea have previously resulted in impacts

that are substantial, significant and adverse.”          [BLNR Decision

and Order p. 220, COL 183]      Understandably, the proscription

against imposition of a substantial adverse impact upon

conservation district land contained in HAR § 13-5-30(c)(4) must

be applied in light of the purpose of the chapter of which it is

a part.     See Kilakila, 138 Hawaiʻi at 405, 382 P.3d at 217.         The

purpose of HAR Title 13, Chapter 5 is to conserve, protect and

preserve the important natural and cultural resources of the

State of Hawaiʻi in the conservation district:          “The purpose of

this chapter is to regulate land-use in the conservation

district for the purpose of conserving, protecting, and

preserving the important natural and cultural resources of the

State through appropriate management and use to promote their

long-term sustainability and the public health, safety, and

welfare.”     HAR § 13-5-1.   To effectuate the protection of

cultural resources in the conservation district mandated in HAR

Chapter 13-5, HAR § 13-5-30(c)(4) was adopted to prohibit land

use that will cause a substantial adverse impact on cultural

(. . . continued)

Order p. 21, FOF 134] HAR § 13-5-30(c)(4), the rule protecting
natural resources from substantial adverse impacts, was adopted in
1994.




                                     8
   _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


resources.   The legislative history, the record of legislative

intent preceding HAR § 13-5-30(c)(4), is an unequivocal

expression of intent to protect conservation land from the

consequences of the degradation principle.         Rather than promote

further degradation of conservation land that, in its “existing”

condition, has been substantially adversely impacted, i.e.,

degraded, the Hawaiʻi State Legislature (legislature) created a

management framework that protects against further degradation.

The companion statute that authorized the implementation of HAR

§ 13-5-30(c)(4) is HRS Chapter 183C.        Its purpose is to

conserve, protect, and preserve natural and cultural resources

in the conservation district—not to establish a process

permitting the degradation of such a resource once the resource

has been substantially adversely impacted:

                 The legislature finds that lands within the state
           land use conservation district contain important natural
           resources essential to the preservation of the State’s
           fragile natural ecosystems and the sustainability of the
           State’s water supply. It is therefore, the intent of the
           legislature to conserve, protect, and preserve the
           important natural resources of the State through
           appropriate management and use to promote their long-term
           sustainability and the public health, safety and welfare.

HRS § 183C-1 (2011).     The adoption of HAR § 13-5-30(c)(4) in

1994 was intended to implement the purpose of HRS Chapter 183C,

namely “clarify[ing] the department’s jurisdictional and

management responsibilities within the State conservation

district.”   H. Stand. Comm. Rep. No. 491, in 1994 House Journal,

at 1057.   To clarify the responsibility of the State to
                                     9
   _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


conserve, protect, and preserve natural resources, mandatory

language prohibiting land use that causes substantial adverse

impact on natural resources, including cultural resources, was

codified.5    The legislative history of HRS § 183C-1 and HAR § 13-

5-30(c)(4) contains no discussion of or allusion to the

degradation principle; instead, its import is to provide more

clear protection for Hawaii’s natural resources by preventing

further damage to conservation land already subjected to

substantial adverse impacts.6

     5
           HAR § 13-5-30(b) provides that, “[u]nless provided in this
chapter, land uses shall not be undertaken in the conservation
district.” (Emphasis added). HAR § 13-5-30(c) provides that, “[i]n
evaluating the merits of a proposed land use, the department or board
shall apply the following criteria.” (Emphasis added). We have
interpreted this language to mean that a proposed land use is
“prohibit[ed]” if it violates HAR § 13-5-30(c)(4), the fourth of these
criteria. Majority Opinion at 54. As noted, consistent with the
clarification of the State’s duty to protect cultural resources, the
1994 passage of HAR § 13-5-30(c)(4) specifically defined natural
resources to include cultural resources.
     6
           HAR § 13-5-30(c)(4) protects natural resources in the
conservation district from any land use that causes a substantial
adverse impact. HAR § 13-5-30(c)(4) does not allow this protection to
be balanced against any competing interest, such as economic value
from the proposed land use. If the proposed land use will cause a
substantial adverse impact to the existing cultural resource, no
amount of compensation or economic benefit is legally capable of
justifying the impact. This is in contrast to other Hawaiʻi resource
management regimes, such as the Coastal Zone Management statute, which
explicitly requires a balancing test:
                   No development shall be approved unless the authority
             [designated by the county] has first found . . . [t]hat the
             development will not have any substantial adverse
             environmental or ecological effect, except as such adverse
             effect is minimized to the extent practicable and clearly
             outweighed by public health, safety, or compelling public
             interests.

                                                            (continued . . .)

                                      10
   _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


          As noted, the BLNR’s decision reverses the standard of

protection in HAR § 13-5-30(c)(4) requiring evaluation of the

impacts of TMT on existing natural resources.          The new

“reversed” standard ignores the fact that the existing resource

has been substantially adversely impacted.         The degradation

principle eliminates the analytical requirement of HAR § 13-5-

30(c)(4) that a determination be made as to whether the proposed

land use will have a substantial adverse impact on the resource

as it exists.   Instead, the degradation principle provides that,

once the resource has been substantially adversely impacted, the

impact of the proposed land use cannot cause a substantial

adverse impact.     In this way, the BLNR omits the requirement of

HAR § 13-5-30(c)(4) that, regardless of whether the existing

resource has previously sustained substantial adverse impact,

the impacts of the construction of TMT on existing resources

must be considered to determine whether TMT will cause a

substantial adverse impact.      The BLNR’s decision directly

contradicts this court’s holding in Kilakila that required the



(. . . continued)

HRS § 205A-26(2)(A) (2017). Unlike the Coastal Zone Management
regulatory regime, under HAR § 13-5-30(c)(4), economic benefit is not
available as a justification for a project that will cause a
substantial adverse impact on natural resources in the conservation
district. A change of the land use classification to a designation
other than conservation land would be necessary.




                                    11
   _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


proposed land use to be considered in the context of “existing

natural resources within the surrounding area, community, or

region.”   HAR § 13-5-30(c)(4); see 138 Hawaiʻi at 403, 382 P.3d

at 215 (considering the impacts of a telescope in the context of

the cultural resources of the site on which it was proposed to

be located).

           Thus, the BLNR and the Majority acknowledge past

telescope projects have had a substantial adverse impact on

cultural resources,7 specifically that the cumulative effect of


     7
           The BLNR described these impacts as being substantial,
significant, and adverse:
           At the summit ridge, the existing observatories obscure
           portions of the 360-degree panoramic view from the summit
           area. Overall, the existing level of the cumulative visual
           impact from past observatory construction projects at the
           summit ridge area has been considered to be substantial,
           significant, and adverse.

                 Development of the existing observatories also
           significantly modified the preexisting terrain. The tops
           of certain puʻu, or cinder cones, were flattened to
           accommodate the foundations for observatory facilities.
           Some materials removed from the puʻu were pushed over the
           sides of the cinder cones, creating steeper slopes that are
           more susceptible to disturbance. Consequently, the
           existing level of cumulative impact from preexisting
           observatories on geology, soils, and slope stability is
           considered to be substantial, significant, and adverse.

[BLNR Decision and Order, p. 21-22, FOF 136-37 (internal numbering and
exhibits omitted)] The United Kingdom Infrared Telescope,
specifically, was constructed on the summit ridge, which the BLNR
described as “a more sensitive cultural area.” [BLNR Decision and
Order, p. 31, FOF 182] It found that the United Kingdom Infrared
Telescope and the James Clark Maxwell Telescope obstruct views to the
west, and the 2.2-meter telescope and NASA Infrared Telescope Facility
obstruct views to the north. [BLNR Decision and Order, p. 157, FOF
854]


                                                          (continued . . .)

                                    12
   _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


astronomical development on Mauna Kea and other uses of the

summit area “have already resulted in substantial, significant

and adverse impacts[.]”      Majority Opinion at 55.       Yet, based on

the fact that the condition of the existing resource has already

(. . . continued)

           The Majority’s conclusion that TMT will not have a
substantial adverse impact on existing natural resources comes with
little explanation, other than to make clear that it is relying upon
the reasoning of the BLNR in its Decision and Order. Majority Opinion
at 59 (accepting the BLNR’s finding that “the TMT project will not
cause substantial adverse impact to the existing natural resources
within the surrounding area, community, or region under HAR § 13-5-
30(c)(4)”).

           Though the Majority accepts the BLNR’s conclusion of no
substantial adverse impact, it provides no explanation as to how the
BLNR reached its conclusion. It does not discuss the BLNR’s
proposition that the substantial adverse impacts already imposed on
the cultural resources mean that TMT could not be the cause of a
substantial adverse impact. Instead, the Majority begs the question.
It states as a premise that TMT does not cause a substantial impact
and restates the premise as its conclusion. Thus, the Majority avoids
an analysis of whether TMT causes a substantial adverse impact to the
existing natural resources. The Majority lists resources that the
BLNR concluded will not be affected, including cultural resources, and
states that because they are not substantially adversely impacted, the
BLNR was correct in concluding there is no substantial adverse impact:
          Because (1) the TMT will not cause substantial adverse
          impact to existing plants, aquatic life and wildlife,
          cultural, historic, and archaeological sites, minerals,
          recreational sites, geologic sites, scenic areas,
          ecologically significant areas, and watersheds, (2) the
          abandoned Poliʻahu Road will be restored, (3) five
          telescopes will be decommissioned, and (4) mitigation and
          other measures will be adopted, the BLNR did not clearly
          err in concluding that the TMT will not have a substantial
          adverse impact to existing natural resources within the
          surrounding area, community, or region, as prohibited by
          HAR § 13-5-30(c)(4).

Majority Opinion at   59-60. Most of the Majority’s opinion regarding
HAR § 13-5-30(c)(4)   is spent discussing the mitigation measures. The
focus on mitigation   by the BLNR and the Majority supports the
conclusion that the   project will cause a substantial adverse impact.




                                    13
   _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


reached the point of substantial adverse impact, the proposed

land use escapes scrutiny as to whether it will cause a

substantial adverse impact; the “tipping point” beyond which

impacts become substantial has already been reached due to the

cumulative impacts of prior telescope development.           The TMT

project cannot, therefore, be the tipping point to cause a

substantial adverse impact.      The signature purpose of HAR § 13-5-

30(c)(4), to prevent land use that will cause a substantial

adverse impact to natural resources in the conservation

district, is extinguished.      Without the protection afforded by

HAR § 13-5-30(c)(4) and HRS § 183C-1, the way is open to a

conclusion fraught with illogic:         the construction of a

telescope the magnitude of TMT will not cause a substantial

adverse impact to a natural resource of undisputed significant

cultural value—notwithstanding that the resource has already

been substantially adversely impacted by construction of twelve

existing buildings of lesser size.        The real severity of the

impact to the resource is made apparent by the effort of the

BLNR and the Majority to mitigate the project’s effects with

conditions that—though ineffective—support that Mauna Kea will

be substantially adversely impacted when TMT is constructed.8

     8
           Although the Majority concludes that, in its degraded
condition, the existing resource will not be substantially adversely
impacted by the TMT project, it takes a contradictory position

                                                          (continued . . .)

                                    14
   _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_




(. . . continued)

implying acknowledgment that TMT will cause a substantial adverse
impact that must be mitigated. The Majority seeks to mitigate the
damage TMT will cause. It relies upon the University of Hawaiʻi at
Hilo’s (University) agreement to decommission three telescopes, the
Very Long Baseline Array antenna, and one additional observatory. The
Majority presumes that the impact from TMT will become less than
substantial once the mitigation measures are complete. However, HAR §
13-5-30(c)(4) prohibits land use in the conservation district where
the land use will cause a substantial adverse impact. Thus,
restoration of cultural resources to a condition that is not
substantially adversely impacted must occur before a Conservation
District Use Permit is granted.

           Moreover, the mitigation measures adopted by the BLNR and
the Majority do not constitute reasonable mitigation measures. They
are illusory. Three of the telescopes have no required date of
decommissioning. Instead, removal is relegated to an undefined point
in the future when it is “reasonably possible” to remove them. These
aspirational measures appear in Special Conditions 10 and 11 of the
permit:
                The University will decommission three telescopes
          permanently, as soon as reasonably possible, and no new
          observatories will be constructed on those sites. This
          commitment will be legally binding on the University and
          shall be included in any lease renewal or extension
          proposed by the University for Mauna Kea;

                . . . [C]onsistent with the Decommissioning Plan, at
          least two additional facilities will be permanently
          decommissioned by December 31, 2033, including the Very
          Long Baseline Array antenna and at least one additional
          observatory.

[BLNR Decision and Order p. 267, DO 10-11 (internal numbering
omitted)] If the University fails to decommission the five
telescopes, the BLNR would be authorized, but not required, to revoke
the permit for TMT. See HAR § 13-5-44. Given that the BLNR
speculates that the time it would take for TMT to become operational
is a reasonable amount of time in which to decommission three
telescopes, [BLNR Decision and Order, p.31, FOF 179] it seems highly
unlikely that the BLNR would revoke the TMT permit after this
reasonable amount of time has passed—that is, when TMT becomes
operational. Even if the permit were revoked due to a failure to
decommission the other telescopes, it is not clear that there would be
adequate funding to decommission TMT before 2033. [BLNR Decision and
Order, p.67, FOF 360] These conditions are little more than
aspirational goals, as their enforcement would depend on action taken

                                                          (continued . . .)

                                    15
   _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


          The degradation principle is antithetical to the

intent expressed in HAR Chapter 13-5 to provide protection to

natural resources in the conservation district.          It causes

cultural resources protected from substantial adverse impact to

lose protection once they are substantially impacted in an

adverse manner.     The import of this method of rejecting the

protection afforded to conservation land is the authorization of

degradation of resources with utmost cultural and environmental

importance.   And so it has happened in the instant case.

 III. The Degradation Principle Violates Norms of Environmental
                               Law

          Norms of environmental law support the legislature’s

intent to protect natural resources on conservation land—

notwithstanding that it has been previously subjected to a

substantial adverse impact.      The degradation principle, on the

other hand, violates norms of environmental law.           It allows

further environmental and cultural damage to occur in a region



(. . . continued)

by the very entity presently granting the permit—the BLNR. And the
term “as soon as reasonably possible” is vague enough as to be
effectively unenforceable. These supposed conditions are ineffective
as mitigation measures because their failure can occur at any time up
to the completion of the construction of TMT, at which time they are
highly unlikely to be put into effect. Rather than mitigating the
adverse impact of TMT, they will permit further degradation of the
resource that, in its existing condition, has already been
substantially adversely impacted.




                                    16
     _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


of great cultural significance because the cultural resource has

been previously substantially degraded and compromised.              This

justification for acceleration of damage to a protected resource

runs contrary to the intent embodied in Article XII, section 7

and Article XI, section 9 of the Constitution of the State of

Hawaiʻi (Hawaiʻi Constitution) to protect cultural and

environmental rights.       The degradation principle also

contravenes international law that protects the outstanding

value of cultural and natural resources, notwithstanding

degradation to the resource.        These norms include

intergenerational equity, polluter pays, and non-regression.

A.    Cultural and Environmental Rights Embodied in the
      Hawaiʻi Constitution
            The degradation principle contravenes provisions of

the Hawaiʻi Constitution that protect cultural and environmental

rights.    Article XII, section 7 affirms and protects the rights

of Native Hawaiians to engage in traditional and customary

practices.     Under Article XI, section 9, every person holds a

substantive “right to a clean and healthful environment[.]”

Contrary to Article XII, section 7, and Article XI, section 9,

the degradation principle teaches that once a natural resource

in the conservation district is degraded to the degree that it

has suffered a substantial adverse impact, it is no longer




                                      17
   _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


worthy of protection; it bares insufficient worth to protect the

resource from additional proposed development.

            This court has held that “‘[t]he right to a clean and

healthful environment’ is a substantive right guaranteed to each

person by Article XI, section 9 of the Hawaiʻi Constitution[.]”

In re Application of Maui Elec. Co., 141 Hawaiʻi 249, 261, 408

P.3d 1, 13 (2017) (quoting Haw. Const. art. XI, § 9).             Article

XI, section 9 provides:

                  Each person has the right to a clean and healthful
            environment, as defined by laws relating to environmental
            quality, including control of pollution and conservation,
            protection and enhancement of natural resources. Any
            person may enforce this right against any party, public or
            private, through appropriate legal proceedings, subject to
            reasonable limitations and regulation as provided by law.

In Maui Electric, this court classified this right as “a

property interest protected by due process.”           Maui Elec., at

261, 408 P.3d at 13.      The right to a clean and healthy

environment is enumerated in laws relating to the environment

including, for example, those that prohibit a proposed land use

in a conservation district when it will “cause [a] substantial

adverse impact to existing natural resources[.]”            HAR § 13-5-

30(c)(4).    The degradation principle undermines the right to a

clean and healthy environment because it allows unimpeded

destruction of the environment once a determination is made that

the natural resource protected from substantial adverse impacts

within the conservation district has been subject to


                                     18
     _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


“substantial, significant and adverse” impacts from development.

Majority Opinion at 55.       Similarly, the degradation principle

vitiates the right to practice Native Hawaiian traditional and

customary practices embodied in Article XII, section 7 of the

Hawaiʻi Constitution9 whenever the cultural practices have been

subjected to a substantial adverse impact in the conservation

district.

B.    Intergenerational Equity

            The State holds Hawaii’s natural resources in trust

“[f]or the benefit of present and future generations[.]”10              Haw.

Const. art. XI, § 1.       This court has consistently emphasized the

      9
           “The State reaffirms and shall protect all rights,
customarily and traditionally exercised for subsistence, cultural and
religious purposes and possessed by ahupuaʻa tenants who are
descendants of native Hawaiians who inhabited the Hawaiian Islands
prior to 1778, subject to the right of the State to regulate such
rights.” Haw. Const. art. XII, § 7; see, e.g., In re Waiʻola O
Molokaʻi Inc., 103 Hawaiʻi 401, 409, 83 P.3d 664, 672 (2004) (holding
that the Commission on Water Resource Management “failed to discharge
its public trust duty to protect native Hawaiians’ traditional and
customary gathering rights, as guaranteed by . . . [A]rticle XII,
section 7 of the Hawaiʻi Constitution”); Kalipi v. Hawaiian Tr. Co., 66
Haw. 1, 4, 656 P.2d 745, 748 (1982) (recognizing this court’s
obligation to protect and enforce the rights of Native Hawaiians to
exercise traditional and customary practices embodied in Article XII,
section 7 of the Hawaiʻi Constitution).
      10
           See, e.g., In re ʻĪao Ground Water Mgmt. Area High-Level
Source Water Use Permit Applications, 128 Hawaiʻi 228, 276, 287 P.3d
129, 177 (2012); Kelly v. 1250 Oceanside Partners, 111 Hawaiʻi 205,
222-23, 140 P.3d 985, 1002-03 (2006); In re Waiʻola O Molokaʻi, 103
Hawaiʻi at 429–31, 83 P.3d at 692–94; In re Water Use Permit
Applications (Waiāhole I), 94 Hawaiʻi 97, 113, 129-32, 138-39, 141,
189, 9 P.3d 409, 425, 441-44, 450-51, 453, 501 (2000); Robinson v.
Ariyoshi, 65 Haw. 641, 674, 658 P.2d 287, 310 (1982).




                                      19
   _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


responsibility held by the State to ensure that the rights of

future generations are preserved.        E.g., Kauai Springs, Inc. v.

Planning Comm’n of Cty. of Kauaʻi, 133 Hawaiʻi 141, 172, 324 P.3d

951, 982 (2014) (“The public trust is, therefore, the duty and

authority to maintain the purity and flow of our waters for

future generations and to assure that the waters of our land are

put to reasonable and beneficial uses.”); Kelly, 111 Hawaiʻi at

221–23, 140 P.3d at 1001–03 (discussing this court’s adoption of

the public trust doctrine and the principle of intergenerational

equity embodied therein); Waiāhole I, 94 Hawaiʻi at 141, 9 P.3d

at 453 (“Under the public trust, the state has both the

authority and duty to preserve the rights of present and future

generations in the waters of the state.”); Robinson, 65 Haw. at

674, 658 P.2d at 310 (recognizing the State’s concomitant duty

to protect water for future generations and ensure that water is

“put to reasonable and beneficial uses”).11


     11
           U.S. courts have recognized that the federal government
owes a public trust duty to present and future generations. In
Juliana v. United States, the U.S. District Court for the District of
Oregon ruled that a group of young environmental activists between the
ages of eight and nineteen (plaintiffs) had standing to assert
substantive due process and public trust claims against the U.S.
government based on its failure to adopt adequate measures to decrease
the country’s reliance on fossil fuels and reduce carbon emissions.
Juliana v. United States, 217 F.Supp.3d 1224, 1233, 1267 (D. Or.
2016), motion to certify appeal denied, No. 6:15-CV-01517-TC, 2017 WL
2483705 (D. Or. June 8, 2017). The plaintiffs argued that the U.S.
government has “known for over fifty years that carbon dioxide (“CO2”)
produced by burning fossil fuels were destabilizing the climate system

                                                          (continued . . .)

                                    20
   _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


           The BLNR promotes an analysis that requires it to

ignore the impacts to future land uses arising from the

cumulative effect of twelve telescopes built over the last fifty

years in the MKSR.    Future generations do not receive the

benefit of protection of the cultural resource in the future

because past substantial adverse impacts render it unnecessary

to determine future impacts from TMT.        In Unite Here! Local 5 v.

City & Cty. of Honolulu, 123 Hawaiʻi 150, 231 P.3d 423 (2010)

this court rejected a similar decision to ignore impacts of a

proposed land use.    In Unite Here!, this court emphasized the

importance of considering future impacts from proposed

development decisions.     The case arose from a proposed expansion

of Kuilima Resort at Turtle Bay (Kuilima) on the North Shore of

Oʻahu.   Unite Here!, 123 Hawaiʻi at 154, 231 P.3d at 427.          In

1985, Kuilima submitted an environmental impact statement (EIS)

to the Department of Land Utilization.         Id.   The EIS identified

various adverse impacts of the development including “drainage,

traffic, dust generation, water consumption, marsh drainage

input, loss of agricultural uses, construction noise, air

(. . . continued)

in a way that would ‘significantly endanger plaintiffs, with the
damage persisting for millennia.’” Id. at 1233. The court granted
the plaintiffs standing because they established that the “youth and
future generations” would suffer harm “in a concrete and personal
way.” Id. at 1224, 1267.




                                    21
   _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


quality, and sold waste disposal.”        Id. at 155, 231 P.3d at 428.

Over the course of the next twenty years, the project

encountered several delays.      Id. at 157, 231 P.3d at 430.         In

2005—twenty years after the permit was granted—Kuilima submitted

a Site Development Division Master Application Form and

contended there was no basis for a supplemental EIS (SEIS) to

assess changes to the surrounding area.         Id. at 154, 159, 231

P.3d at 427, 432.      The Department of Planning and Permitting

agreed; it ruled that no SEIS was required because “[n]o time

frame for development was either implied or imposed by the City

Council as part of its [original] approval.”          Id. at 159, 231

P.3d at 432.      Kuilima was allowed to proceed without conducting

a SEIS.

            Despite the fact that twenty years had passed since

the initial project proposal, the circuit court affirmed the

Department of Planning and Permitting’s decision.           Id. at 166-

67, 231 P.3d at 439-40.     It ruled “that a SEIS is required only

when there is a substantive project change and . . . that, as a

matter of law, the timing of the project had not substantively

changed.”   Id.    This meant that absent a substantial change in

the proposal itself, the original “EIS would remain valid in

perpetuity and no SEIS could ever be required[.]”           Unite Here!

Local 5 v. City & Cty. of Honolulu, 120 Hawaiʻi 457, 472, 209



                                    22
      _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


P.3d 1271, 1286 (App. 2009) (Nakamura, J., dissenting), vacated,

123 Hawaiʻi 150, 231 P.3d 423 (2010).

             This court reversed the ICA’s decision.           The court

found it significant that substantial, cumulative changes in the

area occurred between 1985 and 2005.           Unite Here!, 123 Hawaiʻi at

179, 231 P.3d at 452.        This included a dramatic increase in

traffic and the introduction of endangered and threatened

species in the area, including the monk seal and green sea

turtle.     Id.   The court held that the timing of the project had

substantively changed and this change had a significant effect

on the project.       Id. at 180, 231 P.3d at 453.        The passage of

twenty years created “an ‘essentially different action’” than

the one proposed, necessitating an SEIS.            Id. at 178, 231 P.3d

at 451.     In Unite Here!, this court contemplated “changes in the

project area and its impact on the surrounding communities[.]”

Id.    In doing so, we considered the impacts of the proposed

development on the rights and interests of future generations.

Rather than freeze the analysis of the impacts by considering

only a period twenty years in the past, this court recognized

that the interests of subsequent generations required that the

impacts on the resource be considered at the time the

construction was to occur.

             The BLNR would return to the proposition rejected in

Unite Here! that a project need not take into consideration the

                                       23
   _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


impacts of the proposed land use on the resource as it presently

exists.   The degradation principle removes the need to consider

the impacts of TMT on the existing resource; once the existing

cultural resource has been substantially adversely impacted, it

is unnecessary to consider whether a future land use would cause

a substantial adverse impact.       In this way the BLNR ignores the

rights of future generations to the protections specifically

afforded them by the rule adopted in 1994, which mandates that

“the proposed land use will not cause substantial adverse impact

to existing natural resources within the surrounding area,

community, or region.”     HAR § 13-5-30(c)(4).       The legislature

did not intend that the rights of future generations to the

protection of Mauna Kea be ignored by disregarding the impact of

the TMT project on a resource already substantially adversely

impacted by the construction of twelve telescopes.

          Application of the degradation principle disregards

the rights of future generations.        It creates a threshold

condition of damage—substantial adverse impact—that, once met,

renders the resource available for future degradation.            In so

doing, the degradation principle presumes there is no natural

resource value left to protect.       The actions of prior and

present generations extinguish the chance for future generations

to protect the environmental and cultural heritage that once

enjoyed legal protection.      Future generations are left with the

                                    24
   _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


proposition enshrined in the degradation principle that

incremental degradation to “the highest mountain peak in the

Hawaiian Islands” and one that “is of profound importance in

Hawaiian culture” justifies significant future degradation if

the degradation attains a substantial adverse degree.            Mauna Kea

Anaina Hou v. Bd. of Land & Nat. Res. (Mauna Kea I), 136 Hawaiʻi

376, 399, 363 P.3d 224, 247 (2015).12



     12
           Intergenerational equity is a tenet of international law.
Principle 3 of the Rio Declaration on Environment and Development
prescribes the boundaries of intergenerational equity: “The right to
development must be fulfilled so as to equitably meet developmental
and environmental needs of present and future generations.” Rio
Declaration on Environment and Development, princ. 3, June 14, 1992,
31 I.L.M. 874, U.N. Doc. A/CONF.151/26. The International Court of
Justice (ICJ) recognized intergenerational equity as early as 1996.
In Legality of the Threat or Use of Nuclear Weapons, the ICJ noted
“the environment is not an abstraction but represents the living
space, the quality of life and the very health of human beings,
including generations unborn.” Legality of the Threat or Use of
Nuclear Weapons, ICJ Reports 1996, p. 241, ¶ 29. The Supreme Court of
the Republic of the Philippines recognized the rights of future
generations in Juan Antonio, et al. v. Fulgencio S. Factoran, Jr.,
G.R. No. 101083, 224 S.C.R.A. 792 (S.C. July 30, 1993) (Phil.). In
the Juan Antonio case, the petitioners asserted claims to prevent mass
deforestation based on the rights of “their generation as well as
generations unborn.” Juan Antonio, 224 S.C.R.A. at 798. The court’s
decision arose from the principle of intergenerational equity:

          We find no difficulty in ruling that they can, for
          themselves, for others of their generation and for the
          succeeding generations, file a class suit. Their
          personality to sue in behalf of the succeeding generations
          can only be based on the concept of intergenerational
          responsibility insofar as the right to a balanced and
          healthful ecology is concerned. Such a right, as
          hereinafter expounded, considers the “rhythm and harmony of
          nature.” Nature means the created world in its entirety.
          Such rhythm and harmony indispensably include, inter alia,
          the judicious disposition, utilization, management, renewal
          and conservation of the country’s forest, mineral, land,

                                                          (continued . . .)

                                    25
     _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


C.    Polluter Pays Principle

            The polluter pays principle seeks to deter

environmental degradation by imposing liability on the polluter.

See Joslyn Mfg. Co. v. Koppers Co., 40 F.3d 750, 762 (5th Cir.

1994).    Polluters must pay for the cost of restoring the value

of the site damaged by their own activities and those impacted

by the damage.      Courts in the United States have applied

polluter pays to remedy harm to the environment.             E.g., United

States v. Capital Tax Corp., 545 F.3d 525, 530 (7th Cir. 2008)

(recognizing that the government can recover damages from

responsible parties to clean up hazardous waste because “the

‘polluter pays’” under Title 42, Sections 9606(a) and 9604(a) of

the United States Code); Joslyn Mfg. Co., 40 F.3d at 762

(ordering the polluter to pay the cost of restoring a


(. . . continued)

            waters, fisheries, wildlife, off-shore areas and other
            natural resources to the end that their exploration,
            development and utilization be equitably accessible to the
            present as well as future generations. Needless to say,
            every generation has a responsibility to the next to
            preserve that rhythm and harmony for the full enjoyment of
            a balanced and healthful ecology. Put a little
            differently, the minors’ assertion of their right to a
            sound environment constitutes, at the same time, the
            performance of their obligation to ensure the protection of
            that right for the generations to come.

Id. at 798-99. See also Vellore Citizens Welfare Forum v. Union of
India, AIR 1996 SC 1, 11 (India) (recognizing that intergenerational
equity is a cornerstone of the customary international law principle
of sustainable development). Thus, intergenerational equity ensures
accountability between the generations of mankind.




                                      26
   _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


contaminated site and denying the polluter’s “scheme under which

it could defray part of its clean-up cost by passing the

contaminated property through a series of innocent landowners

and then, when the contamination is discovered, demanding

contribution from each”); see also Fla. Const. art. II, § 7(b)

(incorporating the polluter pays principle to protect the

Everglades Agricultural Area by holding those who cause

pollution “primarily responsible for paying the costs of the

abatement of that pollution”).

               “Polluter pays” is also a principle of international

law.    A prominent example of its application occurred in the

Trail Smelter Arbitration spanning the late 1930s and early

1040s.       See Trail Smelter Case (U.S. v. Can.), 3 R.I.A.A. 1905,

1965 (Perm. Ct. Arb. 1938 and 1941).        A trail smelter owned by a

Canadian corporation emitted noxious sulphur dioxide fumes that

drifted and harmed crops in the United States.          Id. at 1917,

1965.       The Permanent Court of Arbitration13 held Canada




       13
           The Permanent Court of Arbitration is an intergovernmental
organization with 121 contracting parties (states) located in the
Hague. Permanent Court of Arbitration, https://pca-cpa.org/en/home/
(https://perma.cc/B2V9-TCC9) (last visited Nov. 7, 2018). It was
formally established through the Convention for the Pacific Settlement
of International Disputes in 1899, arising out of a need for a forum
to conduct dispute resolution among states. Id.




                                    27
      _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


financially responsible for the damage and accorded compensation

to the United States:

             [U]nder the principles of international law, as well as the
             law of the United Sates, no State has the right to use or
             permit the use of its territory in such a manner as to
             cause injury by fumes in or to the territory of another or
             the properties or persons therein, when the case is of
             serious consequence and the injury is established by clear
             and convincing evidence . . . . Considering the
             circumstances of the case, the Tribunal holds that the
             Dominion of Canada is responsible in international law for
             the conduct of the Trail Smelter.

Id.    Therefore, the polluter was liable for the environmental

and economic harm caused by its pollution.            Similarly, in the

seminal case Vellore Citizens Welfare Forum v. Union of India &

Ors., the Supreme Court of India recognized the polluter pays

principle as a tenet of sustainable development—a principle of

customary international law.         AIR 1996 SC 1, 11-13, 22 (India).

A citizens’ group challenged tanneries that were releasing

untreated effluent into surrounding waterways and land.               Id. at

1.    The court defined polluter pays:

             [T]he absolute liability for harm to the environment
             extends not only to compensate the victims of pollution but
             also the cost of restoring the environmental degradation .
             . . . [P]olluter is liable to pay the cost to the
             individual sufferers as well as the cost of restoring the
             environmental degradation.

Id. at 12.      The court ordered the formation of an official

authority to implement the polluter pays principle to determine




                                       28
   _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


the costs of repaying victims and restoring the environment.

Id. at 22.14

          The Judicial Committee of the Privy Council, reviewing

an appeal from Trinidad and Tobago,15 recently applied the

polluter pays principle to address water pollution regulations:

          The Polluter Pays Principle . . . is now firmly established
          as a basic principle of international and domestic
          environmental laws. It is designed to achieve the
          “internalization of environmental costs”, by ensuring that
          the costs of pollution control and remediation are borne by
          those who cause the pollution, and thus reflected in the
          costs of their goods and services, rather than borne by the
          community at large.

Fishermen & Friends of the Sea v. the Minister of Planning,

Hous. & Env’t [2017] UKPC 37 ¶ 2 (appeal taken from Trinidad and



     14
           In the absence of an express statutory or constitutional
mandate, the court integrated international norms into domestic law.
It noted that when customary international law does not directly
contradict domestic law, it is inherently incorporated into domestic
law:
                In view of the above mentioned constitutional and
          statutory provisions we have no hesitation in holding that
          the precautionary principle and the polluter pays
          p[r]inciple are part of the environmental law of the
          country.

          Even otherwise once these principles are accepted as part
          of the Customary International Law there would be no
          difficultly in accepting them as part of the domestic law.
          It is almost accepted proposition of law that the rule of
          Customary International Law which are not contrary to the
          municipal law shall be deemed to have been incorporated in
          the domestic law and shall be followed by the Courts of
          Law.

Vellore Citizens, AIR 1996 SC at 13. Therefore, the court
incorporated the polluter pays principle into its analysis.
     15
            Lord Carnwath, assigned from the Supreme Court of England,
authored the opinion of the Council.




                                    29
     _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


Tobago).16    In Fishermen and Friends, a non-profit organization

challenged a regulation promulgated by the Minister of Planning,

Housing and the Environment that prescribed fixed fee amounts

for cases of pollution or environmental degradation.             Id. ¶¶ 6-

7.   The regulation was promulgated under the National

Environmental Policy which codifies the polluter pays principle.

Id. ¶ 5.     Section 2.3(b) of the National Environmental Policy

mandates that money collected from polluters “will be used to

correct environmental damage.”         Id.   The regulation was

challenged as inadequate because it imposed a flat fee on all

polluters as opposed to a fee based on actual damage:

             “As a result of the flat fee model which has been selected,
             no fees collected are being used to correct environmental
             damage. This also has a consequential effect in respect of
             proportionality, as there is no ability to tailor the fee
             to meet the degree of damage which might be caused by
             different permittees. The costs associated with rectifying
             environmental damage will obviously vary according to the
             pollution load, pollutant profile, sensitivity of receiving
             environment and toxicity.”

Id. ¶ 38.     Under this reasoning, the court found that the

regulation did not adequately incorporate the polluter pays

principle and failed to comply with the National Environmental



      16
           In 2001, the Minister of Planning, Housing and the
Environment promulgated the Water Pollution Rules and the Water
Pollution (Fees) Regulations. Fishermen & Friends, ¶¶ 15-16. The
Rules and Regulations established a permitting system whereby
permittees that were releasing water pollutants above permissible
levels were required to pay a “prescribed fee.” Id. ¶ 15. “The fee
did not vary according to the type or amount of the pollution
permitted” and therefore did not apply polluter pays. Id. ¶ 16.



                                      30
     _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


Policy.    Id. ¶¶ 43, 45, 53.      The court enforced the polluter

pays principle to ensure that polluters are held accountable for

the actual harm caused by their development.

            The Majority recognizes that the University is

responsible for the substantial adverse impacts caused by its

development in the summit area of Mauna Kea.17           It is the

“polluter” that caused cultural harm.          Under the Majority’s

opinion, the polluter pays principle is reversed.             The polluter

is permitted to benefit from degradation so adverse that the

removal of five telescopes—identified by the BLNR and the

Majority—would be necessary to mitigate the substantial adverse

impact upon cultural resources.         The protection of conservation

land for future generations afforded by the polluter pays

principle is lost.

D.    Non-regression Principle

            The principle of non-regression imposes an affirmative

obligation to not regress, or backslide, from existing levels of

legal protection.      This principle is generally applied in the

context of cultural and social rights, and environmental law.

The Clean Water Act,18 for example, mandates a “general


      17
            The University began operating observatories on Mauna Kea
in 1968.
      18
            Clean Water Act, 33. U.S.C. § 1362 (2014).




                                      31
   _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


prohibition on backsliding[.]”19       Cmtys. for a Better Env’t v.

State Water Res. Control Bd., 34 Cal. Rptr. 3d 396, 406 (Cal.

Ct. App. 2005), as modified (Sept. 27, 2005).          It ensures that

“subsequent permit effluent limits that are comparable to

earlier ones are not allowed to ‘backslide,’ i.e., be less

stringent.”   Id.

          Nations have included the principle of non-regression

in treaties and domestic legislation.        For example, the Regional

Agreement on Access to Information, Public Participation and

Justice in Environmental Matters between Latin America and the

Caribbean, adopted in March 2018, provides that the parties

shall be guided by the principle of non-regression.           Regional

Agreement on Access to Information, Public Participation and

Justice in Environmental Matters in Latin America and the

Caribbean art. 3(c), March 4, 2018,

https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_

no=XXVII-18&chapter=27&clang=_en z (https://perma.cc/AVK7-5YGM).

The European Parliament (Parliament) also applies the non-

     19
           The U.S. District Court for the Northern District of
California has recognized that the Clean Air Act also implements a
non-regression policy. WildEarth Guardians v. Jackson, 870 F.Supp.2d
847, 850 (N.D. Cal. 2012), aff’d sub nom. WildEarth Guardians v.
McCarthy, 772 F.3d 1179 (9th Cir. 2014) (“In 1977, Congress further
amended the Clean Air Act to add requirements designed to ensure not
only that certain air quality standards were attained, but also that
the air quality in areas which met the standards would not degrade or
backslide.”).




                                    32
   _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


regression principle to natural resources.         Its significance as

a principle of environmental protection was a central feature of

the Parliament’s commitment to sustainable development.            The

Parliament specifically adopted a resolution that “calls for the

recognition of the principle of non-regression in the context of

environmental protection as well as fundamental rights[.]”

Resolution of 29 September 2011 on Developing a Common EU

Position Ahead of the United Nations Conference on Sustainable

Development (Rio+20), PARL. EUR. DOC. P7_TA(2011)0430 (2011).            The

principle of non-regression was applied by the United Nations

General Assembly in 2012.      G.A. Res 66/288, ¶ 20, annex, The

Future We Want (July 27, 2012).       General Assembly Resolution

66/288 recognizes that “it is critical that we do not backtrack

from our commitment to the outcome of the United Nations

Conference on Environment and Development.”          Id. (emphasis

added).

          Notwithstanding prevailing international norms

disfavoring backsliding on legal protection of the environment,

the analysis of the BLNR and the Majority does so.           The purpose

of HAR § 13-5-1 is “to regulate land-use in the conservation

district for the purpose of conserving, protecting, and

preserving the important natural and cultural resources of the

State through appropriate management and use to promote their

long-term sustainability and the public health, safety, and

                                    33
   _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


welfare.”    Therefore, the natural and cultural resources in

conservation districts have a baseline level of protection from

usage that causes a substantial adverse impact.

            The degradation principle peels away this protection.

It allows further degradation based on damage cumulatively

caused by prior impacts.      The BLNR’s analysis regresses to a

former stage of the law—when the conservation district was not

protected by the proscription codified in HAR § 13-5-30(c)(4)—

that conservation land may be subjected to usage that causes a

“substantial, significant and adverse” impact on cultural

resources.    Prior to 1994, development decisions in the

conservation district did not have to account for “conserving,

protecting, and preserving the important natural and cultural

resources of the State[.]”      HAR § 13-5-1.     The BLNR’s decision

encourages regression by reversing protections for critical

natural resources in the conservation district.          It employs an

analysis that renders TMT invisible:        “Even without the TMT, the

cumulative effect of astronomical development and other uses in

the summit area of Mauna Kea have resulted in impacts that are

substantial, significant and adverse.”         Majority Opinion at 55

(emphasis added).    The BLNR and the Majority enhance regression

by ignoring the impact of TMT.       But viewed under the correct

standard contained in HAR § 13-5-30(c)(4), TMT is not invisible.

The principle of non-regression made explicit in HAR § 13-5-

                                    34
   _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


30(c)(4) requires that the effects of a 180-foot high structure,

dug 21 feet into the earth, 600 feet below the summit of Mauna

Kea, be considered.     The degradation principle treats any

further development on the cultural resource as inconsequential

because the cultural resource has already been substantially

adversely impacted.     As applied to the proposed project, the

degradation principle adopts a regressive approach to managing

environmental and cultural resources in the conservation

district that violates HAR § 13-5-30(c)(4).

                            IV.    Conclusion

            The degradation principle ascribes to the legislature

the intent that conservation land lose its protection under the

Hawaiʻi Constitution and the laws of the State of Hawaiʻi

whenever it has been subjected to a substantial adverse impact.

HAR § 13-5-30(c)(4) is a direct refutation of such regressive

treatment of conservation land.       Instead, the legislature

intended—consistent with its constitutional duty to future

generations—to conserve, protect, and preserve “the important

natural and cultural resources of the State through appropriate

management and use to promote their long-term sustainability.”

HRS § 183C-1.   Appellees’ Conservation District Use Application

proposes a land use that cannot be permitted if it causes a

substantial adverse impact on cultural resources.           HAR § 13-5-

30(c)(4).   The degradation principle substitutes a contrary

                                    35
   _***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***_


standard that relieves the permittee of the burden to prove no

substantial adverse impact—if the resource is already

substantially adversely impacted.        Correctly applied—and

consistent with the clear intent of Hawaii’s legislature and

norms of environmental law—HAR § 13-5-30(c)(4) requires that the

impacts of TMT be assessed with full recognition that the

existing resource has already received cumulative impacts that

amount to a substantial adverse impact.         In light of the correct

standard, whether TMT will have a substantial adverse impact

where there already is a substantial adverse impact becomes

straightforward.    The substantial adverse impacts to cultural

resources presently existing in the Astronomy Precinct of Mauna

Kea combined with the impacts from TMT—a proposed land use that

eclipses all other telescopes in magnitude—would constitute an

impact on existing cultural resources that is substantial and

adverse.   Accordingly, the Conservation District Use Application

for TMT must be denied.

                                         /s/ Michael D. Wilson




                                    36
