GaryHooser's Blog

In my career as a former state Senate leader, County Council member, and community advocate, I have shaken the hands of countless adversaries after a skirmish – political, legislative, and even legal. It’s not always an easy interaction though it is warranted in the interest of maintaining open communications and the simple courtesies of life. It’s also not easy because of what is left unsaid.

You see, I so very much want to ask: “How can you possibly represent a particular cause or company that is clearly doing harm to the community to which you belong?

On the heels of the hearing which just took place on the lawsuit against BLNR and Syngenta, I find myself struggling with the same question as I watch competent, talented professionals, good people,  place themselves at the service of corporate wrong-doers. I say corporate wrong-doers because I have witnessed first hand, and heard enough reports from the community to be dismayed by the constant illegal behavior and actions of Syngenta.

Why would a good man choose to support the actions of a bad company?

Even murderers and rapists deserve legal representation, and I am sure the attorneys representing Syngenta will likewise argue that the company deserves the best legal representation money can buy. But why would they want to sell their expertise and their intelligence and skills to aid and advance the agenda of a company that is causing long lasting harm to the community in which they are choosing to operate?

How can anyone feel good about helping a company like Syngenta do to the people and land in Hawaii what Syngenta is forbidden by law to do in in its home country, Switzerland?

Some of the signs held by protestors who successfully persuaded regulators in Europe to stop Monsanto and its use of dicamba in its tracks said: “Our children are not your lab rats.” We might say the same to Syngenta. The children and infants on Kauai are not your lab rats.

Syngenta is an international chemical company doing very bad things around the world.  While evil will perhaps seem an over-the-top description to some, that is the word that comes to mind (that and criminal as well) when I think about their conduct and impacts around the world.

Do the attorneys representing a company like Syngenta share in the moral responsibility for the companies conduct?  Or is providing legal representation just a job with no moral or ethical implications?

This question I am sure has been debated extensively in universities everywhere, as it relates to the ethics of law and business. The answers are never simple. But shouldn’t we be asking the question at least?

It seems that there are at least two or three categories of workers who face the same  ethical and moral questions.  The entry-level uninformed worker perhaps not aware of the harm their company is doing to the health and welfare of people and the planet, I would think get a pass on this.  Likewise, the worker struggling to put food on the table and pay the rent, also should probably not be blamed for the sins of their employer.

But the wealthy, educated and informed who actively promote and defend the agenda of a company that causes great harm in the world, surely they must bear some responsibility?

My guess is the attorneys and other well-paid corporate executives who help the bad guys of the corporate world do bad things around the world, stop asking themselves these questions.  Instead they accept the profits that come their way, and to compensate for helping corporate criminals such as Syngenta pollute the water, poison the people and in general pillage the planet these high paid executives might join the boards of nonprofit organizations, donate their legal expertise on occasion to help poor people and perhaps even attend church on a regular basis. But can you really whitewash complicity or tacit approval?

To be clear, Syngenta is a very bad actor around the world, which I suppose is a useful and profitable thing if you are a lawyer being paid to defend their harmful actions.

I have no easy answer and each of us must at the end of the day, look ourselves in the mirror and be comfortable with the person they see.

If you have read this far, and are perhaps unfamiliar with those harmful actions of which I allude to, I’ve outlined a few below:

1. Syngenta and other chemical companies manufacture products that are killing farmers in India and other countries.                                         http://www.financialexpress.com/market/commodities/mncs-syngenta-bayer-monsanto-blamed-for-farmers-deaths-in-maharashtra/897043/

2.  Syngenta lies and attempts to mislead entire countries as to the safety of their products, some of which are banned in their own country but which they use by the ton in Hawaii and around the world.                  https://www.nytimes.com/2015/02/24/business/international/a-pesticide-banned-or-not-underscores-trans-atlantic-trade-sensitivities.html

3.  Syngenta is one of the largest polluters of ground-water in the world.                                                            https://environmentaldefence.ca/2016/11/01/atrazine-drinking-water-pollutant/                                                                                                  https://www.bna.com/syngenta-water-systems-n12884909659/

4.  Syngenta attacks and smears the reputations of scientists who challenge them. https://www.newyorker.com/magazine/2014/02/10/a-valuable-reputation

5.  Syngenta mislabels and mismanages its pesticide products.      http://pulse.ncpolicywatch.org/2016/09/19/epa-fines-syngenta-1-2-million-for-selling-misbranded-pesticides-failing-to-keep-study-records/#sthash.H2hOXdRk.dpbs

6.  Syngenta misleads farmers.                                                         https://www.bloomberg.com/news/articles/2017-09-26/syngenta-said-to-pay-more-than-1-4-billion-in-corn-settlement

7.  Syngenta does not protect its workers.                                         https://www.epa.gov/newsreleases/epa-files-complaint-against-syngenta-farmworker-safety-violations-kauai

8.  Syngenta security guards kill peasant activists in Brazil.              https://www.swissinfo.ch/eng/two-killed-in-shoot-out-at-syngenta-gm-farm/6208040

I may never understand the motives or ethical considerations of the adversaries who shake my hand, but I know that I along with many others will continue to fight the wrongdoings of companies like Syngenta that they choose to support and serve.

Our community will not stop in this effort until at the very minimum they: Fully disclose what pesticides they are using in our community, agree not to use them next to schools, hospitals and homes, and follow the same reasonable regulations they are required to follow in their own country.

Please join us in this effort if you can.

Urgent – Please support the HAPA Legal Fund today if you can. Your help is needed now, prior to December 1 if at all possible to ensure the HRS343 State/Syngenta appeal, plus to support future and ongoing legal actions, communications and administrative support pertaining to pesticides use by industrial chemical companies, water diversions and the general protection of health and environment.  Any amount is helpful and greatly appreciated, our goal is to raise $20,000 by the first of the year, but at least half must be raised by December 1 in order to move forward with confidence on the matter now before the courts. http://www.hapahi.org/donate/  All contributions to HAPA are tax deductible.

Gary Hooser   http://www.garyhooser.com

The Hawaii Alliance for Progressive Action (H.A.P.A,)  http://www.hapahi.org/take-action/

For those wondering what happened in court yesterday below are my thoughts and observations.

Judge Randal Valenciano seemed very familiar with the section of law being argued, HRS343 – the Hawaii Environmental Policy Act (HEPA).  He also seemed to have studied closely prior to the hearing the arguments being presented by both sides.  And it is also likely that he had come to his core decision prior to hearing the oral arguments presented yesterday (which would not be unusual).

As a plaintiff, our position was that the BLNR/Syngenta did not comply with HRS343 and improperly exempted from environmental review activity being conducted on approximately 60 acres of land part of which was conservation zoned and located adjacent to the coastline, and historically designated as “Crown Lands”.

The other sides position was that because this was “ongoing use” that HEPA did not apply, and if it did apply the activities were “exempt” because of the “ongoing use”.  Syngenta’s attorney dwelt on the use of the word “proposed” in the HEPA law and argued it only applied to a “proposed use” and not an “ongoing use”.

Syngenta also attempted to argue that the BLNR did not even have to exempt the matter from HEPA, because HEPA did not apply.  The BLNR attorney however acknowledged that HEPA did apply and the Judge stated clearly that Syngenta was incorrect.

However acknowledging that HEPA did apply while significant in an of itself (and is a decision by the court that we are celebrating) was not the end of the story.  The next step in the courts decision making process was to address the question of, “Did the action/activity qualify as a ‘proposed use’ or not?”

While our side argued that the current use on the property had never undergone any environmental review, had operated under faulty CDUP conditions (or lack thereof), that its original use as sugar cane had changed dramatically over the years, and that a significant portion of the property had essentially never gotten the required permits needed to conduct the present activities – the judge in the end and we believe erroneously, sided with the State/Syngenta.

Judge Valenciano verbally acknowledged but apparently failed to be swayed by the fact that Hawaii Administrative Rules (HAR) state clearly that:

“If an exempt action is proposed in a particularly sensitive environment, or if successive exempt actions could have a cumulative impact, the exempt status of the action would be invalid.”

This provision is intended to supersede all exemptions to the HEPA law, however for whatever reason this was not considered or otherwise was discounted by the court.  Clearly the actions of Syngenta with regards to the intense application of Restricted Use Pesticides, have a “cumulative impact” and the actions are being conducted in a “particularly sensitive environment”.

Another key component that the judge acknowledged but refused to consider is that the State/Syngenta failed to consult with the State Department of Health (SDPH) prior to issuing its exemption even though the Office of Environmental Quality Control states clearly in their exemption guidelines:

“The proposing or approving agency must consult with agencies or individuals having jurisdiction and expertise before declaring a project to be exempt from preparing an environmental assessment.”

The SDOH is the agency that holds all of Syngenta’s experimental permits, and obviously is an agency that “has jurisdiction and expertise” pertaining to the potential health and environmental impacts involved in this matter.

So to summarize the summary:

The Judge ruled against our primary contention that the State/Syngenta failed to comply with HRS343, based on his belief that they are conducting an “ongoing use” and it is not a “proposed use”.  We believe his reasoning in reaching this conclusion was flawed, did not take into consideration the scope and breadth of the existing use nor the factual and historical background, and we will be appealing the decision.  

However, Judge Valenciano did affirm that HRS343 does apply to the State/Syngenta (and other companies in a similar situation) when the use is a “proposed use”.  So based on this courts decision, when Syngenta or others attempt to expand their use of State lands in the future beyond their existing foot-prints, this would trigger HRS343 and the “existing and ongoing use” argument would not be relevant.  We believe this acknowledgment by the court is significant and are celebrating it as a win. Important note: In general, HRS343 applies only to State or County lands and not to private lands.

Disclaimer: I am not a lawyer, though I did briefly attend the UH Richardson School of Law and have been involved in making law at both the County and the State level for the past 16 years.  In addition, I served for a brief time as the Director of the OEQC, the agency that administers and manages HEPA and HRS343.  In addition, I am the volunteer President of the Board of Directors for the Hawaii Alliance for Progressive Action (HAPA) who is one of the plaintiffs in this case.

Note1:   Judge Valenciano frequently referred to “Umberger” that clearly was used as the basis for his decision:

Umberger v. Department of Land & Natural Resources

https://law.justia.com/cases/hawaii/supreme-court/2017/scwc-13-0002125.html

Note2: Earlier I posted on FaceBook copies of some of the Syngenta permits that are heavily redacted but indicate they are conducting activities in areas near or adjacent to “critical habitat” and the presence of endangered species. https://www.facebook.com/garyhooser/posts/10214047127596734?pnref=story

Note3: Here is another Hooser Blog item that further details key elements surrounding the law suit: https://garyhooser.wordpress.com/2017/11/06/state-blnr-grants-syngenta-free-pass-on-environmental-review/

Urgent – Please support the HAPA Legal Fund today if you can.  Your help is needed now, prior to December 1 if at all possible to ensure the HRS343 State/Syngenta appeal, plus to support future and ongoing legal actions, communications and administrative support pertaining to pesticides use by industrial chemical companies, water diversions and the general protection of health and environment.  Any amount is helpful and greatly appreciated, our goal is to raise $20,000 by the first of the year, but at least half must be raised by December 1 in order to move forward with confidence on the matter now before the courts. http://www.hapahi.org/donate/  All contributions to HAPA are tax deductible.

The Hawaii State Board of Land and Natural Resources (BLNR) is proposing to exempt Syngenta operations on public conservation and coastal lands from environmental review – WITHOUT EVEN KNOWING WHAT THOSE ACTIVITIES ARE.

Syngenta is an agrochemical company conducting research that requires a federal permit and the BLNR has not examined those permits prior to reaching a decision to exempt them from environmental review.  If they did examine them, they would learn that the proposed research is being conducted in areas adjacent to “critical habitats” populated by various endangered species.  They would also learn that the research involves experimenting with food crops not approved for human consumption and not approved for release into the environment.   And even a cursory look at Syngenta operations in Hawaii would reveal their use of literally tons of highly toxic Restricted Use Pesticides (RUP’s). This company is one of the largest polluters of ground water on the entire planet and our State grants them a free pass to HRS343 exempting them from environmental review.

Without even looking at the federal permits, the BLNR has come to a decision that the Syngenta activity will have no environmental impact – even though this activity is being conducted on state owned conservation zoned land, adjacent to sensitive coastal areas that include critical habitats and are historically significant Crown lands.

The BLNR has no basis for exempting Syngenta from doing an environmental review.

Anyone who goes to the website of the Department of Land and Natural Resources quickly learns that it “is responsible for managing, administering, and exercising control over public lands, water resources, ocean waters, navigable streams, coastal areas (except commercial harbors), minerals, and all interests therein. The department’s jurisdiction encompasses nearly 1.3 million acres of State lands, beaches, and coastal waters as well as 750 miles of coastline.” This is no small task.

The public needs to be able to count on this oversight being exercised with rigor and integrity.

On October 27, 2017 the State of Hawaii Board of Land and Natural Resources (BLNR) was on the verge of adopting a staff recommendation on permitting for Syngenta: “That the Board find this project will probably have minimal or no significant effect on the environment and is presumed to be exempt from the preparation of an environmental assessment.”

Fortunately this particular item was withdrawn from the agenda, to be reconsidered at a later date. However similar decisions have already been made by the BLNR and the Hawaii Alliance for Progressive Action (HAPA) has joined other plaintiffs in a legal filing to require the BLNR/Syngenta to conduct the required environmental review.

What was this particular action, and why would Syngenta be given an exemption from the environmental review process?

The BLNR was poised to renew a revocable permit allowing Syngenta to conduct experimental GMO field trials and related activities on public, coastal, conservation zoned and historically significant Crown Lands.

The intended action included exempting Syngenta from the environmental review process (HRS343) that is required by law.

Why?

The BLNR’s staff had determined “this project will probably have minimal or no significant effect of the environment…” even though Syngenta’s own federally required permits on file at the State Department of Health (SDOH) indicate the company would be conducting their field trial research on food crops not approved for human consumption nor approved for release into the open environment, in areas near or adjacent to critical habitats known to contain various endangered species.

As the former Director of the Office of Environmental Quality Control (OEQC), I am keenly aware of the law and rules governing Chapter 343. An exemption in this case is inappropriate for many reasons.

The OEQC’s guidelines state: “If an exempt action is proposed in a particularly sensitive environment, or if successive exempt actions could have a cumulative impact, the exempt status of the action would be invalid.”

This provision supersedes all “standard exemptions” cited by the BLNR in justifying an exemption to the law requiring an environmental impact review.

Conservation lands should be protected

The parcel proposed for Syngenta’s use is situated in a coastal area, a portion of which is designated State Land Use District: Conservation. The particularly sensitive environment of coastal areas and conservation land in general, is sufficient reason to require a thorough environmental review.

The provision relating to “if successive exempt actions could have a cumulative impact” also certainly applies.

Syngenta is an agrochemical company that conducts intensive research on crops that are federally regulated and that require large amounts of Restricted Use Pesticides. The cumulative impact of Syngenta’s use of highly toxic chemicals over a number of years in a sensitive coastal area has never been evaluated. The risks to health and environment from decades of chronic exposure must be evaluated prior to the approval of any permit extensions.

Syngenta does not engage in “customary or ordinary agriculture.”

There have been no environmental assessments, not even of a cursory nature, conducted as to the near term or long term impacts, cumulative impacts over time, or the secondary impacts caused by the repeated and long term use of these highly toxic chemicals. Nor has there been any review of the impacts of experimental and federally regulated crops (not approved for human consumption) on the local community’s health and natural environment.

As a former OEQC director, State Senator, and elected member of the Kauai County Council, I am keenly aware of the impact of Syngenta’s activities on my community. We have had incidents of school children getting sick downwind of these fields. We have had massive sea urchin die offs along the coastlines.

I get calls from surfers who can smell the pesticide drift while they sit in the water waiting to catch a wave. I have spoken to fishermen questioning whether or not they should eat the fish, and hunters concerned about eating wild boar who have foraged on the experimental corn.  And, I have seen testimony from medical doctors who practice in West Kaua‘i hospitals who are very concerned about the health impacts on their patients, particularly children and infants.

There are many questions and few answers, because there have been no comprehensive environmental studies on these lands, most of which are owned by the State of Hawai‘i.

BLNR cannot make an informed decision about whether Syngenta’s use of public trust lands is harming those lands, waters, or the people around it without knowing how they are using the land, what pesticides they use, how often, how much and where.

No “food farmer” in Hawaii uses anything close to the range and volume of Restricted Use Pesticides that Syngenta does. Regular “food farmers” do not require federal permits to grow regulated crops that are not approved for human consumption or for release into the environment.

Why is the State Department of Health not consulted?

Syngenta is required to provide copies of their federal permits to the State Department of Health (SDOH). But there has been no consultation by the BLNR with SDOH on how experimental Genetically Engineered Crops may impact those habitats and the SDOH is not even listed as a consulting agency.

The BLNR is obligated by both the public trust doctrine enshrined in our constitution, and in HRS343, to require Syngenta to do a full environmental impact statement. BLNR has no basis for approving any Revocable Permit for Syngenta until a complete environmental review has been conducted.

We count on its fidelity to its mission.

*Excerpts from a recent email conversation with a freshman legislator on why he/she should support increased pesticide regulation.  This person has been requesting additional data/research on this topic that might resolve the opposing arguments presented by industry (which I have provided).  Clearly this person is struggling with the decision making process, and wants to do the right thing.

Aloha (fill in the blank),

Have been thinking about this a lot.

Whether or not to support this legislation, and any legislation really – is essentially a political decision.  On almost all proposed legislation (regardless of the subject matter) there will be arguments on both sides and studies and research on both sides, and at the end of the day the decision will be based on which side of those arguments your core values are based, and whose interests you serve.

Policy-making is not mathematical or science based in the sense that one adds up the numbers and they come to a certain total/conclusion, and that determines the outcome.

Policy-making deals mostly in shades of grey.

In the case of pesticide regulation, many countries have voted to ban various pesticides used in the United States – atrazine, paraquat and chlorpyrifos to name only three that are used heavily in Hawaii.  Why?

They have access to the same data, the same studies/research and the same impacts on farmers etc.  They chose to err on the side of caution in order to maximize the protection of health and environment.  They chose to vote in support of what their constituents wanted, and push back against the corporate forces that make, sell, promote and use these pesticides.  To my knowledge, the agricultural industry in these countries did not collapse or suffer to any degree whatsoever.

There is a ton of data out there that will support any position you choose. Again, this is the nature of almost all issues and proposed legislation.

As someone much smarter than I is fond to point out, serving in public office is not about issues but about interests.  And the fundamental question is, “Whose interests do you serve?”

Serving in the legislature is a tough job.  I wish you all the best in reaching answers that you feel good about.

Respectfully,

Gary Hooser

NOTE: A slightly edited shorter version was first published on November 1, 2017 in The Garden Island Newspaper weekly column “Hooser – Policy & Politics”.

In politics, one of the most well known idioms of all is the quote “…in this world nothing can be said to be certain, except death and taxes.” Benjamin Franklin 1789.  Historical footnote – according to wikipedia the phrase was used earlier in “The Political History of the Devil” by Daniel Defoe in 1726.

It costs money to run a government.  Funding essential government services such as police, fire, airports, harbors, roads, public transportation, schools, parks, environmental protection, homeless shelters and a myriad of other services and facilities is expensive, but it must be done.  For without those services, there is a price to pay none-the-less.

By not funding homeless shelters, affordable housing, addiction treatment and mental health services the population in need of these services grows daily, huddling beneath their blue tarps under bridges, in the door-ways of our businesses and in our public parks.  There is a human price that comes with an increase in human suffering and a financial price that impacts business directly, especially in a tourism-based economy.  In the end, government (read: you and me) pay even more to fund the emergency room visits, the cleaning up of the parks and bus stops, the increased calls for police services and the damage to private property.

There are few options really.  As a community we can look the other way, an immoral choice that does not reduce the cost.  Or, we prioritize our public budgets and fund the essential services needed to protect and serve the most vulnerable.

Those who advocate a “survival of the fittest” and “every man for himself” approach to the world will likely say to those living at the outer margins of our society, “get a job”.  A simple and grossly ignorant sound-bite that resonates with some, until it is pointed out that most of the available jobs do not pay a living wage, affordable rentals are impossible to find and many of the most vulnerable in our community are in fact unemployable.

If you don’t have teeth, or don’t have a regular home to bathe and sleep in, are very old, or have mental health or addiction challenges there are no jobs for you.  You can’t get a job pushing carts in a shopping center or serving fast food without teeth and clean clothes to wear.  There also is no dental care for you, no homes you can afford and no mental health or drug treatment facilities available to you.  With few exceptions, this is the world for the very poor in our community.  Government does attempt to provide a safety net and we have good people doing their best in the human services sector, but they are overwhelmed and under-resourced.

I prefer a “we are all in this together” view of the world.  That lady at the bus stop is our sister and she is our responsibility.  We can look the other way and disown her, we can be angry at her and disgusted at the way she lives, but we have to deal with her.  If we ignore her she will only further hurt herself, and the broader community in the process and the tangible financial price for ignoring her is significant.  Or we can collectively dig a little deeper into our pockets to pay for the support and services she needs.

To be clear there are many in our community who can never be employed and will never “get better”, but they are still our collective responsibility.  Incarceration is extremely expensive and while the criminalization of the poor is increasingly the direction of policy makers, putting people in jail because they smell badly, have no place to live, or curl up to sleep in a park or under a bridge is unconscionable.

That lady at the bus stop is my sister.  While I do not have to invite her and her deep challenges into my home, I do have to accept my societal responsibility that she is a human being and I must recognize there is a cost and a responsibility that must be carried.

NOTE: This was first published in the October 25th, 2017 The Garden Island, “Hooser-Policy & Politics” weekly column.

Hawaii is locked in an economic crisis of immense proportions, yet those in positions of leadership do little. Like crickets in the night we hear them chirping, bemoaning the visual blight of the unwashed, pointing fingers at each other in blame, and occasionally trotting out task forces and studies, and perhaps the occasional pilot project they have commissioned.

Far too many people in our community get up every morning and go to work at a job that pays them substandard wages, with minimal to no benefits. Many work all day, then go on to their night job, but still cannot afford even the basics of a sound roof over their head.

The widespread economic disparity existing now in Hawaii could be greatly diminished if doing so was a priority of Hawaii’s government and business elite. But clearly it is not.

The combination of low wages and high housing costs are crippling burdens carried day after day by working people.

If Hawaii’s elite wanted to alleviate poverty in Hawaii they could do so almost immediately by supporting a $15 minimum wage and undertaking a full-frontal assault on affordable housing.

Raising the minimum wage in Hawaii from the existing $9.25 to at least $15 per hour and indexing that increase to the cost of living would be a major step. Instead of fighting tooth and nail against it, if the business establishment supported a phased-in minimum wage increase, the political support would follow.

Hawaii is an island state. The fear of being forced to compete with lower-wage communities is unfounded, as our economy is primarily visitor industry, construction and military based. Restaurant owners need not worry about customers crossing the border to buy a cheaper hamburger.

While the powers-that-be continue to support the building of luxury condominiums, gentlemen-estate farms and one shopping center development after another, they effectively ignore affordable housing and the plight of regular working men and women.

The majority of land in Hawaii, on every island, is owned by a handful of trusts, corporations and LLCs (limited liability companies). Big business controls the land, often the water, and some would argue the government itself.

State and county government control the land use (zoning), the basic infrastructure, and the regulations. The governor or any mayor could take the lead on this and collaborate with business (or not) and the steps are basic:

The state and county have the power to purchase land via eminent domain if necessary by paying fair market value. Government could purchase land within or adjacent to existing urban areas (consolidating smaller urban low-rise parcels if needed), then increase the density which effectively lowers the “per unit cost” and increases the per unit affordability.

To pay for it, the state could eliminate the tax loophole for real estate investment trusts (REITs) tomorrow and generate $30 million to $50 million per year that could be leveraged and redirected toward affordable housing land purchase or infrastructure construction.

County government could utilize tax incremental funding (TIF), which are bonds borrowed with repayment based on the future property tax revenue that results directly from the development.

Government also has the legal authority to restrict sales and rentals to local residents within a defined set of guidelines, effectively shielding the market from speculation and off-shore investors.

Yes, increasing the minimum wage to at least $15 per hour, combined with an aggressive and bold “Apollo project” approach to our affordable housing crisis, could indeed change the world for the vast majority of Hawaii residents. Let’s do it.

Note: First published on October 19, 2017 in the Honolulu StarAdvertiser “Island Voices” section.

The best thing we can do to solve our traffic problem is to do nothing.

Seriously, while “doing nothing” is clearly not an option, studies have shown that adding more and more lanes simply adds more and more capacity and encourages more and more cars.

Expanding highway infrastructure on our main thoroughfares is a zero-sum game we will never win.  The principle is called “induced demand.”

This conclusion is one that is obviously counter-intuitive, and politically unpopular.  People reading this column have by now already stopped and many are screaming at the idiocy of the suggestion, even as they swear and condemn the traffic in Kapaa and increasingly on the west-side as well.

However, any basic internet search of “transportation planning #101” will repeatedly lead you to this end.

The Brookings Institute says: “Living with congestion. This is the sole viable option. The only feasible way to accommodate excess demand for roads during peak periods is to have people wait in line.”

Brookings goes on to state: “Experience shows that…, peak-hour congestion cannot be eliminated for long on a congested road by expanding that road’s capacity.”  https://www.brookings.edu/research/traffic-why-its-getting-worse-what-government-can-do/

USA Street Blog says: “Numerous studies have documented the phenomenon known as induced demand in transportation: Basically, if you build highway lanes, more drivers will come.”  http://usa.streetsblog.org/2017/06/21/the-science-is-clear-more-highways-equals-more-traffic-why-are-dots-still-ignoring-it/

This is not to say that we should not build new roads.   Yes, we need new roads but simply adding new lanes to existing roads will not get us out of the constant gridlock.  We must continue to improve side street and back road circulation patterns, offering drivers options that avoid the congested areas.  And yes, most certainly we must improve the repair and maintenance of existing roadways.

Given our small population, the huge cost of building new highways, the limited state budget and the sensitive nature of conservation lands that must be crossed for major interior by-pass roads, these types of projects are non-starters.

But the studies, the research and the facts are clear – adding more lanes will not alleviate the traffic.  What will alleviate the traffic are the choice people make to not drive during certain periods, to use public transportation and to live and work within the same general geographic vicinity.

We should think of traffic as a planning opportunity, rather than a planning nightmare.  This is the time, when Kauai County is reviewing its General Plan intended to guide its growth over the next 20 years when the principle of focusing growth on the redevelopment of existing urban centers should be the focus.  Infill re-development, increased density and the reduction of urban sprawl must be the driving force guiding the plans need to provide increased housing, commercial and industrial development.

While our towns will inevitably grow outward, the focus must be on redevelopment of existing urban areas.  Spot zoning outside of our towns and the sprawl that results must be avoided like the plague.

Though adding more lanes has been proven to not alleviate traffic in the long term, the State Department of Transportation (SDOT) will continue to follow this path in the foreseeable future.

The good news/bad news for Kapaa is that within the coming 24 months the SDOT (at a cost of approximately $25 million dollars) will be adding a fourth lane extending from the existing Wailua bridge, running northward in front of the Coco Palms Hotel until it meets with the current Kapaa by-pass which connects with Olohena Road.

Most predict the fourth lane will greatly alleviate traffic in this particular bottle neck, but that relief will last for no more than 5 years when the “induced demand” then catches up.  Also predictable, is that the path of least resistance for the SDOT is continuing incremental construction of that fourth lane, in both directions so that generations to come will be able to sit in 4 lanes of traffic all the way from Kealia to Hanamaulu, instead of the existing 2 that grandma and grandpa enjoy today.

Yes, it is crazy. And yes, we can do something about it.  Comprehensive multi-modal transportation planning, expanding the Kauai Bus service, focusing the development of new affordable housing projects within or adjacent to existing urban areas and saying NO to increased sprawl must be mandates within the Kauai General Plan.

NOTE: First published on October 18th, 2017 in The Garden Island newspaper weekly column “Hooser – Policy and Politics”

“It’s complicated” is often the response given as to why government is not doing more to deal with the lack of truly affordable housing.

Actually, it’s not. It takes a government willing to think long-term, challenge the large landowners and to act boldly. This entails risk, but it’s really not that complicated.

The majority of developable land on Kauai located adjacent to existing towns and residential areas is owned by a handful of trusts, corporations and LLCs. They control the land, often the water, and in many ways our county government itself. The county government controls the land use (zoning), most of the basic infrastructure, and the laws which are intended to guide the island’s future growth (think Kauai General Plan).

While the county seems content to support the never-ending construction of luxury homes, gentlemen-estate farms and one shopping center development after another, they only nibble around the edges of the affordable housing dilemma. This is not to denigrate the hard work of those in both the county housing department or the various nonprofit groups who are presently struggling as best they can with the limited resources they have.

While the Lima Ola project, though only 75 acres, could have been located closer to job centers and designed more pedestrian-friendly, it is a small step in the right direction, but not enough.

It is not the sweat of the rank-and-file that is lacking, but rather the bold leadership at the top.

To be clear, the current affordable housing crisis could be resolved if just a few big landowners sincerely wanted to make it happen, and/or if county government decided to truly attack this issue with the vigor and boldness it deserves.

Collaboration between the two would be the ideal, but the county must lead. They could lead with carrots and sticks, via tax policy and density entitlements, which would likely result in a small but much needed increase in the affordable inventory.

Or they could lead boldly, taking the big steps that are needed to catch up and alleviate the pain and stress of high prices/rents now being endured by so many. Either the mayor or a majority on the council could take the lead on this, and the steps are basic:

w Identify land located within or adjacent to existing urban areas;

w Purchase that land at existing fair market value (by eminent domain if needed);

w Rezone the land to increase density (which decreases the cost per unit);

w Install infrastructure (water, roads, electricity);

w Build/subdivide in partnership with local developers;

w Sell/rent to local residents (with protections against speculation);

Where would the money come from to do all this?

While there are a variety of funding strategies the county could take, one approach that would not impact any resident, nor detract from any existing county service, would be the utilization of Tax Incremental Funding (TIF).

TIF funding are bonds borrowed with repayment based on the future property tax revenue that results directly from the development. Simply stated, the undeveloped raw land presently generates minimal tax revenue, but when developed, that same land generates a far greater amount. This difference could be used to repay the bonds that funded the project.

The county has authority over land use, rezoning and density.

The county also has the power to purchase land via eminent domain by paying fair market value. This means government could purchase land within or adjacent to existing towns and urban centers (Lihue, for example), then increase the density, effectively lowering the “per unit cost,” thus increasing affordability.

Ideally, the developments would include both high density apartments and single-family homes that service kupuna, singles and families, located in areas adjacent to job centers, schools and towns, thus minimizing traffic impacts.

The county also has the legal ability to restrict sales and rentals to local residents within a defined set of guidelines. In other words, homes can be developed in a manner that shields them from speculation and off-shore investors.

Affordable housing should not be an afterthought, tagged on as a minimum requirement to high-end developments, and should be defined as housing the average local resident working a full-time job can afford.

Those in positions of leadership — the mayor and the County Council, with or without the collaboration and cooperation of the major landowners — could do this if they truly wanted to.

NOTE: First published in The Garden Island newspaper in the weekly column “Hooser – Policy and Politics” on October 11, 2017