The Navy is yet to comment on its next steps in the legal battle over Red Hill’s bulk fuel storage facility. A Navy expert in environmental law says it will face a difficult road if it pursues court action against an emergency order relating to Red Hill.
Red Hill was placed under emergency orders by the state on Dec. 6 after residents of military housing near Pearl Harbor complained that their drinking water was contaminated.
The Navy was required to close down the fuel storage facility, install water filtration systems at Red Hill shaft shaft, and remove millions of gallons fuel tanks.
David Day, Deputy Attorney of the State, was in charge of a hearing on contested cases and recommended that it be fully upheld.
Marian Tsuji, Deputy Director of the state Department of Health, concurred in this week’s meeting.
The Navy has 30 days to file the case at Hawaii Circuit Court. However, it has not yet said if it will.
Richard Wallsgrove is an assistant professor at William Richardson School of Law, University of Hawaii at Mnoa. He said that any appeal by Navy is likely face a difficult path.
“The law gives us a lot of discretion to our regulators. Wallsgrove said that they are expected be experts on these topics. “And courts won’t overstep these bounds unless there’s some clear legal or factual error made by the Department of Health.”
Wallgrove stated that Day did a great job explaining why the order should be applied.
Wallsgrove stated, “In my opinion it’s fairly clear, and well-reasoned and it establishes many underlying facts that lead up to the decision.” It relies on a simple provision in the law that gives the (Hawaii] Department of Health and Gov. (David Ige has the power to suspend an operation like this when there is imminent peril to human safety, health, or the environment.
Wallsgrove also mentioned that Oahus is unique because of this. The island only has one aquifer, and if it becomes contaminated, the entire population could be at risk.
“So when you combine all those pieces, I tell you it’s a little difficult to see why a court would turn the order upside down,” he said. There is always room to go back to evaluate parts of it, but it seems to me that the Department of Health has a solid legal foundation here.
David Henkin, an Earthjustice attorney, argued in support of the order on behalf of Sierra Club. He stated that the Navy should immediately follow the order to defuel Red Hill storage tank tanks. He said that even if the Navy continues legal action, the result would remain the same.
Henkin stated that the military knows that the order is subject to law and that the Navy should comply with it, unless and until it’s overturned. “But I don’t see any likelihood that the state court will declare this a non-emergency.”
Red Hill’s World War II-era fuel storage tank can hold up 250 million gallons. This fuel is critical for national security as well as the ability of the armed force to project its presence far away from U.S. shores, according to the Navy.
If the Navy can fix the many leaks that have occurred over the years, it would be able to restart operations at Red Hill under the emergency order.
However, President Joe Biden has just signed the National Defense Authorization Act fiscal 2022. Part of the measure directs Navy to study feasibility of removing fuel, not just from Red Hill but from the whole state.