Yesterday, citizen groups ‘Ohana Pale Ke Ao, Kohanaiki ‘Ohana, GMO Free Hawai’i, and Sierra Club, Hawai’i Chapter, represented by Earthjustice, obtained a court judgment in their favor in a lawsuit they brought in the Circuit Court of the State of Hawai’i, Third Circuit, challenging the state Board of Agriculture’s approval of a project to mass-produce potentially dangerous genetically engineered algae on the Kona coast of the Island of Hawai’i. Circuit Court Judge Elizabeth A. Strance agreed with the citizen groups that the Board was required to comply with the environmental review process under the Hawai’i Environmental Policy Act (HEPA) before approving the project. The Court granted the groups’ request for a judgment declaring that, at minimum, an environmental assessment (EA) was required for the project, and that the Board’s approval without such review was invalid.

“We’re glad that the court upheld this important process of examining the risks of this project and its alternatives,” said Earthjustice attorney Isaac Moriwake. “The state needs to be reminded that environmental review is not a nuisance to be brushed aside, but a basic public duty of all agencies.”

The challenged project proposes to manufacture, in an outdoor environment at a state-owned technology park known as the Natural Energy Laboratory Hawai’i (NELH), “biopharmaceutical” microalgae that is genetically engineered to produce experimental and yet unapproved drugs. The state Department of Agriculture assigned the genetically engineered organism a heightened risk level because the project was the first of its kind and posed unique concerns and risks.

Many in the Kona community expressed their concerns about the risks of contamination of the coastal environment around the project area, which is highly valued and regularly used by local residents, and the dangers of human exposure to the experimental substances. The citizen groups and others urged the Board to undertake HEPA review before approving the project, but the Board ignored their pleas, failing even to give the reason for its refusal.

The biopharm algae project would use state lands and, therefore, triggers the requirement under HEPA that the state conduct an EA to determine whether the project “may” have a significant effect on the environment, in which case a more detailed environmental impact statement (EIS) would have to be conducted. The Board, however, claimed in the lawsuit that their permitting system was not subject to HEPA. The Board also argued that EISs conducted several decades ago, when NELH was first built, covered this particular project. The Court rejected these arguments, noting during the hearing that HEPA applied to all agencies, and that the prior EISs recognized future projects would require their own environmental reviews.

“Introducing genetically engineered organisms to the ecologically sensitive Kona coast poses significant environmental threats,” said Jeff Mikulina, Director of the Sierra Club, Hawai’i Chapter. “We appreciate that the court is requiring the state to look before they leap.”

“This case highlights the importance of citizen participation in the land use decision making process and the need for agencies to examine the environmental and cultural impacts of their decisions,” said Karen Eoff, president of Kohanaiki ‘Ohana. “The court’s ruling recognizes these fundamental values.”

“The court has upheld the protection of our unique and pristine Hawai’i ecosystem,” said GMO-Free Hawai’i member Nancy Redfeather. “Introduction of any genetically engineered organisms must be carefully considered for their long-term effects on our land and community.”