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Environmental lawyers express bewilderment at military decision to appeal Red Hill defueling order

US Navy Region Hawaii

Opponents of the Red Hill fuel storage facility have expressed bewilderment at the Navy’s decision to appeal a state emergency order requiring it to remove the fuel from its tanks.

Deputy Defense Secretary Kathleen Hicks said Monday that appeals will be filed in both federal and state court. She did not specify the precise reasons for the move, but said it "will afford us time to make evidence-based and transparent decisions.”

The order was upheld by the state Department of Health in January after jet fuel contaminated the Navy’s water distribution system in the Pearl Harbor area. It requires the Navy to shut down operations at its Red Hill fuel farm, which it has done, clean up a contaminated well, assess the safety of the facility, and remove millions of gallons of fuel.

"I just find it astounding that they would be taking this position. But so be it. They’ll lose and we’ll proceed," said Dan Cooper, an attorney with Sycamore Law, which is separately preparing a lawsuit against the Navy on behalf of Wai Ola Alliance, a nonprofit conservation group.

"Legally, I don’t think they have much of a leg to stand on. The Resource Conservation Recovery Act makes it clear that the state has jurisdiction to enforce its environmental laws for things like this," Cooper said.

Cooper says the Navy’s move appears designed to simply delay action on the implementation of the order.

He says his firm has dealt with numerous issues of environmental degradation caused by the military in the San Francisco Bay Area, but the Red Hill water contamination is the worst example he has seen.

David Henkin, an attorney for Earthjustice, calls the Navy’s decision baffling and ill-advised. Henkin argued on behalf of the Sierra Club in support of the order.

"You already have the people of Oʻahu who are no longer trusting the Navy to look out for our best interest. And after telling Congress and our state Legislature that they’re going to faithfully follow a lawful order, now they’re claiming they’re going to appeal it," Henkin said. "It makes absolutely no sense to me. And the outcome, whether it’s in the court of law, or in the court of public opinion, is not going to look good for the Navy."

Henkin says even if the Navy is trying to buy more time to work out a solution to the problem, the state’s emergency order remains in effect "unless and until they can convince some judge, state or federal, that this order needs to be put on hold — and I don’t see that happening."

Richard Wallsgrove, an assistant professor at the William Richardson School of Law at the University of Hawaiʻi at Mānoa, previously 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."

Separately, Hicks said the military was working to analyze the distribution of its fuel reserves in the Pacific. She said this would be finished within 60 days to allow Defense Secretary Lloyd Austin to decide what to do about Red Hill “moving forward.”

Read the state emergency order below or click hereto open a new tab.

Scott Kim was a news editor at Hawaiʻi Public Radio.
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