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Navy can appeal Red Hill order, but environmental lawyers say it will be a tough legal fight

Red Hill Underground Fuel Storage.jpeg
U.S. Navy
Lt. Cmdr. Blake Whittle, fuel department director,, NAVSUP Fleet Logistics Center Pearl Harbor, briefs Deputy Assistant Secretary of the Air Force for Operational Energy, Deputy Assistant Secretary of Defense for Energy, Defense Logistics Agency Energy Commander, Director of Operational Energy Policy and staff during a Red Hill Underground Fuel Storage Facility tour. Red Hill is a national strategic asset that provides fuel to operate in the Pacific. (FILE: Aug. 26, 2019)

There’s still no word from the Navy about its next steps in the legal fight over the Red Hill fuel storage facility. An environmental law expert says the Navy will have a tough road ahead if it decides to pursue court action against an emergency state order concerning Red Hill.

The state handed down an emergency order on Dec. 6 following reports that residents of military housing around Pearl Harbor were getting sick from tainted drinking water.

The order requires the Navy to shut down operations at the fuel storage facility, install a water filtration system at the Red Hill shaft, and remove millions of gallons of fuel stored in tanks.

Deputy State Attorney David Day oversaw a contested case hearing and recommended that the order be upheld in full. This week, state Department of Health Deputy Director Marian Tsuji concurred.

The Navy has 30 days to pursue the case in Hawaiʻi Circuit Court but has not said whether it will do so.

Richard Wallsgrove, an assistant professor at the William Richardson School of Law at the University of Hawaiʻi at Mānoa, said any appeal by the Navy is likely to face a difficult path.

"The way the law sets this up is we grant a fair amount of discretion to our regulators.  They’re expected to be the experts on these topics," Wallsgrove said. "And courts don’t want to overstep those bounds unless there’s some sort of clear legal or factual error in the decision from the Department of Health."

Wallgrove said Day did a good job of explaining his reasoning as to why the order should be enforced.

"In my view, it’s fairly clear, and it’s well-reasoned, and it establishes a whole host of underlying facts that lead to the decision," Wallsgrove said. "It relies upon a fairly straightforward provision in the law that grants the (Hawaiʻi) Department of Health and Gov. (David) Ige the power to order the suspension of an operation like this if there’s imminent peril to human health or safety or to the environment."

Wallsgrove said another factor is the unique nature of Oahu’s situation. There is a single aquifer under the island, and if it is contaminated, the entire population would be at risk.

"So when you put all those pieces together, I tell you it’s a little tough to see how a court would flip the order on its head," he said. "There’s always room to go back and evaluate pieces of it, but in general it appears to me, the Department of Health is on pretty solid legal ground here."

Earthjustice Attorney David Henkin argued on behalf of the Sierra Club in support of the order. He said the Navy should immediately begin complying with the order to prepare to defuel the Red Hill storage tanks. He agreed that if the Navy decides to continue legal action, the result would not change.

"The military understands that it is subject to the law, so I expect the Navy to comply with the order, unless and until it is overturned, if they choose to pursue that route," Henkin said. "But I really don’t see a likelihood that the state court is going to say this is a non-emergency."

The World War II-era fuel storage tanks on Red Hill can hold up to 250 million gallons of fuel, which the Navy says is essential for national security and the ability of the armed forces to project its presence far from U.S. shores.

Under the emergency order, the Navy would have recourse to restart operations at Red Hill if it fixes the problems that have caused numerous leaks over the years.

However, President Joe Biden just signed the National Defense Authorization Act for fiscal 2022. Part of that measure directs the Navy to study the feasibility of removing the fuel, not just from Red Hill, but from the state altogether.

Scott Kim is a news editor at Hawaiʻi Public Radio. Contact him at skim@hawaiipublicradio.org.
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