ELR Citation: ELR 20259
No(s). 90-00407 DAE (D. Haw. Jun 25, 1991)

The court holds that the Department of Energy (DOE) is required to commence preparation of an environmental impact statement (EIS) for a four-phase geothermal energy project in Hawaii and is enjoined from further federal participation or funding until the EIS is completed. Hawaii, with the cooperation of Congress and DOE, established a four-phase project to tap the geothermal energy capacity of the Kilauea volcano. The first two phases, building a small plant for research and testing and research regarding the feasibility of transporting the power generated to other islands via underwater cable, have been completed. Phase III, which involves drilling test wells, is currently underway. Phase IV will involve constructing and establishing permanent power plants. Previously, the court ruled that the remaining phases of the project constitute "major federal action" within the meaning of the National Environmental Policy Act (NEPA), and that questions remained as to DOE's level of commitment to the project and as to the DOE's role in implementing the project. Pending that ruling, DOE attempted to reprogram $5 million that Congress had already appropriated to DOE for the project to another project. Congress rejected DOE's attempted reprogramming and directed that any of the appropriated funds not used for an EIS be applied to phase III as originally authorized. Plaintiffs now seek summary judgment claiming the issues are ripe.

The court holds that based on DOE's past conduct, the case cannot be rendered moot merely on the DOE's asserted intent to accede to the wishes of Congress and prepare an EIS on Phases III and IV of the project. A suit to compel an EIS is rendered moot only when the EIS is completed and filed. Here, the EIS process is not only unfinished, it has not begun. DOE makes no commitment on the timing of the promised EIS, does not address the issue of continued federal participation in the project, and does not address issuing further permits or advising and consulting with state and private interests working on the project. The suit cannot be moot as long as the government ignores these additional demands.

Moreover, even if DOE's promises were sufficient to deprive the court of jurisdiction under traditional notions of mootness, these facts fall squarely within the voluntary cessation exception to the mootness doctrine. Under this exception, mootness may only be found if there is no reasonable expectation that the alleged violation will recur, and interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. The court observes that it is not persuaded that there is no reasonable expectation that the alleged violation will recur. DOE has not acknowledged any legal duty whatsoever and has consistently claimed that it has no legal duty to prepare an EIS. It purports to have decided to do an EIS now only because it chooses to, based on a "nonbinding" congressional suggestion. Thus, the court holds that DOE's asserted intent does not moot the case.

The court next holds that plaintiffs are entitled to summary judgment. The government failed to forward admissible evidence and failed to even submit arguments or pleadings on this issue. Further, although DOE previously succeeded in claiming that it was not necessarily committed to the project and had the power to divert the appropriation to other uses, these issues are no longer uncertain and the matter is now ripe. DOE is required to use the money as directed by Congress. The court next holds that plaintiffs have carried their burden of establishing that the project may significantly affect the environment sufficient to prevail in seeking an EIS. The evidentiary offering of expert witness affidavits, scientific reports, illustrative maps, correspondence, and other documents is uncontroverted. Finally, the court rules that for the purposes of NEPA to be served, all federal participation in the project, with the exception of work and funding necessary to accomplish the preparation of an EIS, is suspended until the EIS is prepared and filed.

[A previous decision in this case is published at 21 ELR 20901.]

Counsel for Plaintiffs
Paul Spaulding III, Arnold Lum
Sierra Club Legal Defense Fund
212 Merchant St., Arcade Bldg., Honolulu HI 96813
(808) 599-2436

Counsel for Defendants
Daniel A. Bent, U.S. Attorney; Linda J. Joachim, Ass't U.S. Attorney
300 PJKK Federal Bldg., Ala Moana Blvd., Box 50183, Honolulu HI 96850
(808) 541-2850

Gary B. Randall
Environmentand Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000