IV. CONCLUSION—Lessons and Learned
In Hawaii, Final Environment Impact Statement (FEIS) is the most important process to ensure that the agency make right decisions to the proposal or actions triggered by HRS§ 343-5.
From the Kawailoa project, we learned that failure to (1) provide accurate and sufficient evaluation of visual impact (though it is not avoidable at some level), and (2) fully communicate in order to get the communities’ full awareness of the possible environmental impacts, and (3) provide adequate cultural impact assessment, will possibly negate the fundamental purpose as set forth in HRS§343-1, HAR §11-200-1, and cause a concern whether the accepting agency have chance to have a “hard look” at all impacts and alternatives under the procedural requirements.
In the meantime, wind turbines have been criticized for disrupting the lives of birds and bats, also humans. Noise and shadow flicker are the most common concerns, with some correlation between the most vigorous complaints and parties who do not receive economic benefit from nearby installations. That’s actually what happen in InfraVest Wind Power project located Yuanli town, Miaoli county, Taiwan as we mentioned in the introduce of this article.
Just assumed the InfraVest project generated in Hawaii, as a hypothetical new wind farm project, residences of Yuanli may consider:
(1) Hire experts[i] to prepare visual impact assessment from more different distances, angles, and neighbor areas; to aggressively make comments in each period for public comments after the published of draft of environment impact statement (DEIS) by providing those Visibility Impact Assessment (VIA) results to be qualified for taking HRS § 343-7 (C) “judicial proceeding”.
(2) Periodically monitor the governmental website to see any publication of EA/EIS information made by the Environment Counsel, in order to avoid improper segmentation and get ready to participate in any opportunity of public communication in a timely manner
(3) Take records in each step or meetings of public communication as evidence to prepare for the judicial challenge in HRS § 343-7 (b) or (c).
(4) Take cautions to ensure the new project will be well scoped without improper segmentation.
(5) In case ANY current status of turbines in Yuanli would be changed, ex, removed, added, or replaces, the residences may try to request a supplemental EIS (SEIS) to be submitted to the Environment Counsel, thus to ask removal of certain wind turbines from the current InfraVest project and reduce the visual and cultural impacts to the local scenes or to reduce the noise level to human.
PART III. THE CHALLENGES ON COMPLIANCE WITH HAWAII EIS PROCESS
Although there was no “judicial proceeding”(HRA §343-7) imposed on the Kawailoa Wind Farm, this project it stillexhibited substantive and procedural deficiencies. Substantively, the Visual Impact (“VI”) was not properly addressed in the DEIS or FEIS report; and public participation was possibly inadequate to meet the EIS’purpose as set forth in HRS §343-1, either. Procedurally, a Cultural Impact Assessment (“CIA”) was not included in the EIS process. We may have a quick look of those deficiencies in this section, then consider certain lessons learned in conclusion.
(1) Visual impacts of the wind turbines.
The local citizengroups, NGOs, and individual residents continually concerned about the visual impacts of the wind turbines caused by Kawailoa project. The criticisms including:
(b) the DEIS did not adequately address how the facilities will be situated in appropriate locations to minimize their visual impact;
In Taiwan, development of renewable energy is an irreversible trend to replace, at least partially, the fossil energy. Article 21 of the Basic Environment Law (2002) (環境基本法, the "Basic Law") ruled " Government bodies at all levels shall actively implement measures to control carbon dioxide emissions and establish related plans to mitigate the greenhouse effect." The wind power has been broadly recognized as a primary type of renewable energy, because of it less carbon emissions, sustainable power generation, lower ecological damage, and respectively higher energy conversion rate (compare to other renewable energy).
In order to ensure the energy development will not cause irreparable harm to the environment, Article 24 of the Basica Law further regulated that "The central government shall establish an environmental impact assessment (EIA) system to prevent and reduce the negative impact of government policies or development activities on the environment." Section 1(10), Article 5 of the Environmental Impact Assessments Act openly stipulated the EIA shall be conducted for "nuclear and other energy" developments. Such "other energy" include the wind power.
InfraVest Wind Power Group
In 2010, Kawailoa Wind LLC (“Kawailoa Wind”), proposed constructing a wind farm that included thirty sets of wind turbines and related wind energy generating facilities at the Kawailoa Plantation land (a big farm land on the north shore, Oahu, Hawaii), which was owned by Kamehameha Schools (the “Project”). Kawailoa Wind prepared a final environmental impact statement (the “FEIS”) under Hawaii Restated Statutes (“HRS”) chapter 343 and Hawaii Administrative Rules (“HAR”) 11-200. Because this Project was established on highly scene-sensitive and culturally sensitive land in world famous popular visitor/tourist area (North Shore, Oahu), the local residents were concerned about the aesthetical, ideological, and cultural impact.
In 2007, Kamehameha Schools developed a North Shore Master Plan to integrate the use of their lands on the North Shore of Oahu, Hawaii. They seek the returns of culture, education, environment, economy, and community of this region (the “Master Plan”). “Wind energy has shown great promise for economic returns from preliminary studies…The wind technology has a relatively small footprint will likely be compatible with most agricultural uses.” Under such consideration of “economic returns,” Kamehameha School adopted the Kawailoa Wind project as a part of the Master Plan and provided the lands, which closed to the Waimea Bay--the most famous beach park in North Shore, to Kawailoa Wind.
Kawailoa Wind proposed to build renewable energy (wind power) facilities, including thirty wind turbines with generating capacity of up to 70 MW per hour and other supporting structures. In addition, related communication equipment was installed at two existing Hawaiian Telecom facilities on Oahu’s highest mountain--Mt. Ka`ala. Because of this installation, the EIS process was mandatorily triggered. As per Hawaii law.
Although Kawailoa Wind claimed that its goal was to increase the use of clean, renewable energy and reduce the State of Hawaii’s dependence on fossil fuels, a twenty-five (25) years power purchase agreement, with stable revenues, was entered into with Hawaii Electric Cooperation (“HECO,”) which constituted a significant incentive to Kawailoa Wind-- for the sake of such substantial economic benefits.
The Hawaii EIS process related to the Kawailoa Wind project includes:
- the trigger of EIS process;
- the scoping;
- the EIS preparation notice (EISPN);
- the draft EIS (DEIS);
- the final EIS (FEIS); and
- the mitigation methodology.
In most cases, a judicial challenge process under HRS § 343-7 would allow the public/environmental/community groups to help the decision makers better consider the new wind farm project more completely, while the Kawailoa Wind did not faced those private challenges. Here is a brief of the mentioned processes.
(1) EIS trigger: because Kawailoa Wind project used a small piece (0.27 Acres) of land o Although the Kawailoa project did not get into the n Mt. Ka’ala owned by the State, the EIS process was triggered under the HRS§ 343-5(a). However, according to the HRS § 201N-8 (b), the permission for a renewable energy facility shall not be made until after final acceptance of an environmental impact statement, and a draft EIS shall be prepared at the earliest practicable time. Accordingly, an EIS process shall be required for the new Pupukea Wind project.
(2) Scoping: Scope is an important step in the EIS process after it is triggered. Scoping is to determine the scope of the EIS, and to determine the significant issues to be discussed in the EIS. An applicant may segment the proposal into separated pieces thus to evade the possible EIS process and defeat the purpose of EIS review. Therefore, a proposal shall be well scoped to prevent improper segmentation. In Hawaii, there are four scenarios of actions will be treated as a single action in order to avoid “segmentation”. Maimea Valley may monitor such scoping-relevant activities noticed by the Office of Environmental Quality Control (OEQC) in order to step in earlier.
(3) EISPN: On September 23, 2010, First Wind LLC prepared an EIS Preparation Notice (EISPN) and submitted tothe Hawaii State Energy Office of Department of Business, Economic Development and Tourism (the “DEBDT”) in accordance with the HRS § 201N-8 (2013) and HRS § 343-5(e), without Environmental Assessment (the “EA,” which is usually the first stage of environmental impact evaluation.) A thirty-day consultation period expired on October 30, 2010.
使用翻群機器人之後，會造成Line伺服器與群組及使用者有關的電磁紀錄被修改（變更）甚至刪除，但請回頭看看條文內容， 一開始就是「無故」兩個字（另外兩條也是），作何解釋呢？在此忍不住向當年參與制訂草案的學者專家小小抱怨一下，立法者在強調明確性的刑法上加上不確定性高的用語，風險是要由司法來承擔的！從美國法（18 USC 1030）或歐洲理事會網路犯罪公約的用語可以看出，「無故」應限於「無授權（without authorization）」或「無權利（without right）」的情形。翻群機器人雖然變更或刪除了電磁紀錄，但這本來就是Line系統設定的權限所容許，所以沒有「無故」，也不成立刑法第359條之罪。
所長 范國華執行合夥律師 台大財經法學士、美國加州大學柏克萊分校法學碩士、中國政法大學商法暨智慧財產權法 法學博士
郭凌豪 律師/台中所所長 東吳法學碩士
Shi-An Lu Real Estate Attorney