STATE OF HAWAI`I
Office of Hawaiian Affairs
711 Kapi`olani Boulevard, Suite 500
Honolulu, Hawai`i 96813

HRD06/2048C

October 2, 2006

Dr. Craig Foltz, ATST Program Manager
National Science Foundation, Division of Astronomical Sciences
4201 Wilson Blvd., Room 1045
Arlington, VA 22230

RE: Draft Environmental Impact Statement for the proposed Advanced Technology Solar Telescope, Haleakalā , Maui; TMK: 2-2-007:008

Dear Mr. Foltz,

The Office of Hawaiian Affairs (OHA) is in receipt of the Draft Environmental Impact Statement (DEIS) issued September 1, 2006 for the Advanced Technology Solar Telescope (ATST), which the National Science Foundation (NSF) proposes to build on Haleakalā, Maui. OHA is the “principal public agency in this State responsible for the performance, development, and coordination of programs and activities relating to native Hawaiians and Hawaiians.” Hawai`i Revised Statutes (HRS) § 10-3(3). It is our duty to “assess the policies and practices of other agencies impacting on native Hawaiians and Hawaiians, and conduct advocacy efforts for native Hawaiians and Hawaiians.” HRS § 10-3(4). In this capacity, we offer the following comments.

OHA appreciates that NSF has entered into formal consultation with the U.S. Fish and Wildlife regarding the impacts on the endangered `u`au that live and breed within the preferred project site. We also commend the agency’s attempt to address environmental and cultural concerns through an EIS and the consistent use of correct Hawaiian spelling, including the usage of `okina and kahako.

We have serious concerns with the DEIS, however. As further explained below, the DEIS was not used as a decision-making tool prior to NSF’s decision to build the ATST at Haleakalā, as required by the National Environmental Policy Act (NEPA) and the Council for Environmental Quality (CEQ) regulations. In addition, the alternatives presented in the DEIS do not represent a true opportunity for NSF to make an informed choice of location for the ATST, nor for adequate public input in the process.

To rectify these deficiencies, OHA requests that NSF issue a supplemental draft EIS that includes the final three sites, which were identified by NSF as suitable for the ATST, as alternatives for comparison. This would provide decisionmakers and the public the opportunity to review all reasonable alternatives to the proposed action using environmental and cultural criteria, in conjunction with technical criteria, as required by NEPA. Until NSF completes a proper environmental review for the ATST project, OHA opposes this EIS and the project.

Timing of the NEPA process

NEPA “declares a broad national commitment to protecting and promoting environmental quality.” Robertson v. Methow Valley Citizens Council, 490 U.S.332, 348 (1989). To achieve this policy goal, NEPA requires that each federal agency consider the potential environmental impacts of all “major Federal actions significantly affecting the quality of the human environment” through the preparation of an environmental impact statement. 42 U.S.C. § 4332. This directive is known as a “set of action-forcing procedures that require that agencies take a ‘hard look’ at environmental consequences.” Robertson at 350.

Proper timing is essential for NEPA procedures to be effective in meeting the national goal of environmental protection. Pursuant to DEQ Regulations, an EIS “shall be prepared early enough so that it can serve practically as an important contribution to the decisionmaking process and will not be used to rationalize or justify decisions already made.” 40 C.F.R. § 1502.5. The Ninth Circuit Court of Appeals has stated that “NEPA’s purpose is to ensure that federal agencies take a ‘hard look’ at environmental consequences before committing to action.” Ground Zero Center for Non-Violent Action v. United States Dept. of the Navy, 383 F.3d 1082; 1086 (9th Cir. 2004) (emphasis added).

The requirement that NEPA procedures begin as early in the decisionmaking process as possible is not limited to specific final actions, such as the “siting, construction, and operation” of the ATST. DEIS at 1-1 (“NSF has prepared this EIS to evaluate the potential environmental impacts associated with the siting, construction, and operation of the Proposed Action.”) Rather, “[a]gencies shall integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values, to avoid delays later in the process, and to head off potential conflicts.” 40 C>F>R § 1501.2.

It is clear form the brief overview that follows that NSF did not comply with NEPA regulations by considering environmental effects of its proposed project “at the earliest possible time.” Rather, environmental and cultural concerns were considered only afterthe decision to construct at Haleakalā was made. All of the following information was taken from the DEIS at pages 2-1 through 2-3:

• 1998 – Idea to construct an ATST was born; first criteria for defining an astronomically optimal site for the ATST were established
• 2000 – International science community refined site criteria
• 2001 – 72 potential sites chosen based on scientific criteria; after evaluation, sites were narrowed down to 6
• 2002 – Physical testing of 6 sites began, and after a year, testing continued on 3 of the 6 sites
• 2004 – Final report “concluded that Haleakalā met the criteria for the primary science outputs – annual required hours of good seeing and dark skies.”
• 2006 – “Upon selection of Haleakalā as the proposed site, the procurement process was initiated in January to identify an environmental engineering company to provide support for the EIS process and related cultural studies and consultations.”

By NSF’s own admission, environmental and cultural concerns were considered onlyafter the decisionmaking process was completed. OHA appreciates that extremely technical decisions must be made for the placement and construction of this telescope and that technicalities are best left to NSF scientists and experts. As a federal agency, however, NSF is bound by NEPA and DEQ regulations. CEQ regulations state, “[e]ach agency shall… [i]dentify environmental effects and values in adequate detail so they can be compared to economic and technical analyses. Environmental documents and appropriate analyses shall be circulated and reviewed at the same time as other planning documents.” 40 C.F.R. § 1501.2 Thus, it is absolutely clear under NEPA that environmental values are not to come second to economic and technical considerations, as occurred in this situation.

Alternatives Analysis

The heart of an EIS is its discussion of alternatives. 40 C.F.R § 1502.14. Every EIS must contain a “rigorous and objective” analysis of “all reasonable alternatives” to the proposed action, including a discussion of the “no action” alternative as a base-point to which the proposed action can be compared. 40 C.F.R. § 1502.14(a). Although not every alternative must be considered, “[t]he existence of a viable but unexamined alternative renders an environmental impact statement inadequate.” Citizens for a Better Henderson v. Hodel, 768 F.2d 1051, 1057 (9th Cir. 1985). The requisite alternatives are determined by the stated purposes and goals underlying the proposed agency action, however, “an agency cannot define its objectives in unreasonably narrow terms.” Carmel-by-the-Sea v. U.S. Dep’t of Transportation, 123 F.3d 1143, 1156 (9th Cir. 1997). The alternatives offered must “foster both informed decision-making and informed public participation.” California v. Block, 690 F.2d 753,761 (9th Cir. 1982).

The purpose of the project appears to be the construction of a “powerful, flexible system that would serve the U.S. and international solar physics communities as the primary ground-based facility into the middle of the 21st century and beyond.” DEIS at 1-14. The alternatives presented in the DEIS must therefore reflect this purpose, while providing the decisionmaker all reasonable alternatives for comparison of technical and environmental considerations.

OHA appreciates that the “no action” alternative was included in the DEIS, however, the other two alternatives offered did not properly take into account the environmental effects of the the project. The project will go ahead on Haleakalā, instead of using the NEPA process in deciding where the project will go forward.

OHA is not requesting that NSF analyze the environmental impacts of all 72 sites identified by NSF as potential locations for the ATST. We do believe, however, that an analysis of the final three sites that remained viable options would b reasonable and sufficient to comply with NEPA. By analyzing the final three sites (Big Bear, Haleakalā, and La Palma) through an EIS, NSF will have a tool to consider not only the technical comparisons of the various sites, but the environmental and cultural impacts as well. This would allow NSF decisionmakers the opportunity to “reach enlightened policy decisions by taking into account environmental effects.” Environmental Defense Fund v. Massey, 986 F.2d 528 (D.C. Dir. 1993) (requiring NSF to comply with NEPA before implementing an organic waste incineration program in Antarctica).

Proffered Solution

In summary, to cure the deficiencies with the timing and alternatives requirements of NEPA and CEQ regulations, OHA strongly suggests that NSF issue a supplemental draft EIS that compares the environmental impacts of the final three sites that were previously analyzed by NSF for technical criteria only. This will allow NSF decisionmakers to consider all required factors before a decision is made as to where the ATST should be built. It will also allow the public the opportunity to properly respond to and comment on the proposed project, as envisioned by Congress through NEPA. We note that incorporating proper alternatives into a final EIS is not satisfactory, because a legally sufficient EIS will involve significant changes on which the public must have an opportunity to comment. See, Block, 690 F.2d at 770.

Thank you for this opportunity to comment and for continuing to work with our Maui community resource coordinator, Thelma Shimaoka, regarding the cultural impacts of the ATST. We look forward to reviewing your supplemental DEIS. If you have any further questions or concerns please contact Koa Kaulukukui at [phone and email omitted to prevent spam].

Sincerely,

 

Clyde W. Nāmu`u
Administrator