Governor Abercrombie secretly declares a “civil defense emergency” and suspends 25 laws in order to find unexploded ordnance

Last week, environmental investigator Carroll Cox uncovered alarming revelations that in June, Governor Abercrombie had secretly issued a proclamation declaring a “civil defense emergency” due to the presence of unexploded munitions on hundreds of thousands of acres throughout Hawai’i and suspended 25 laws without notifying anyone, including lawmakers.  On his September 11, 2011 radio program he discussed the proclamation and posted it on his website.

The Honolulu Star Advertiser reported:

Gov. Neil Abercrombie declared a civil defense emergency earlier this summer in a largely unpublicized move that gives the U.S. Army Corps of Engineers sweeping authority to bypass state laws to investigate and remove unexploded ordnance.

With a proclamation on June 14, Abercrombie used emergency powers to suspend for five years statutes regarding public access of coastal and inland recreation areas, forest reserves, aquatic resources, fishing rights, ocean recreation and air, water and noise pollution.

Abercrombie said in the proclamation that the need for immediate ordnance removal does not allow the state or counties “adequate time to comply with Hawaii’s environmental and land use laws while also ensuring the protection of public health, safety and welfare.”

For that reason, Abercrombie said he invoked the civil defense emergency powers,, which allow him to “take possession of, use, manage, control and reallocate any public property.”

Environmental activist Carroll Cox recently raised concern about the proclamation, and state House and Senate leaders said Tuesday they had not been aware of the governor’s decree.

“Whatever the logic — it may have been a needed item — the problem is, why wouldn’t he have notified the public if he declared an emergency?” Cox said in an interview. “Nothing (here) rises to the occasion of an emergency — none of this.”

Cox, discussing the proclamation on his radio show, likened it to the governor declaring martial law.

“This is cause for alarm. Now, under the suspension of the statutes, the governor is free to do anything he wants with state resources without consulting anyone,” Cox said later in a news release.

The purported reason for the proclamation is to expedite Army Corps of Engineers’ cleanup of unexploded ordnance from state and county lands:

“This is a priority of our state’s leaders. In order for the Corps to clean up old munitions, it needs rights of entry,” the Corps said in a statement Tuesday.

The issue of “right of entry” was discussed late last year by the state Department of Land and Natural Resources. At the time, an increase in the department director’s authority was sought to issue entry rights.

The Dec. 9, 2010, report said “it is in the state’s best interest to support and facilitate the (Defense Department’s ordnance) investigation and remediation efforts,” and noted “time critical” entry requests.

“Experience has shown that, with so many moving parts to be coordinated in each project, the (Army Corps) cannot always submit ROE (right of entry) requests far in advance of annual funding opportunities, and delays to ROE issuance can result in loss of funding.”

A recommendation was made that the Board of Land and Natural Resources should find ordnance remediation efforts exempt from state environmental assessment. How the entry issue evolved into a civil defense emergency order was unclear to Abercrombie’s office Tuesday. The state Attorney General’s Office referred calls to the governor’s office.

The clean up of military munitions and contamination should be a high priority.   The Army Corps of Engineers Formerly Used Defense Sites program is one of the better programs for cleaning up military hazards.    However, the suspension of laws sets a dangerous precedent for the abuse of executive powers.   And it creates a dangerous situation where no one is minding the store to even confirm that provisions of the proclamation are being followed.

Just in time for APEC? Rail?

Carroll Cox also points out that this suspension of laws coincides with the enactment of  Senate Bill 1555 allowing the state to create a nonprofit corporation for the development of public lands:

This, along with senate bill 1555 introduced by State Senator Donovan Dela Cruz allowing the state to transfer public land to a corporation for generating revenue, could devastate both our public and private property rights. We wonder, what’s coming up with APEC and the rail project in the works?

In his September 18, 2011 program, he examines Department of Land and Natural Resources Chair William Aila’s actions regarding the suspension of laws.    Cox has called on Abercrombie to rescind the proclamation.

Hawai’i lawmakers were unaware of the Governor’s proclamation, but they were rather timid in their denunciation of the move.   This is not the first time in recent years that the legislature was upset at the governor’s abuse of emergency powers:

The law is meant to give the governor sweeping authority to quickly respond to emergencies such as a terrorist strike, a hurricane, a tsunami, a massive oil spill or a nuclear accident. Lawmakers, however, have discouraged governors from using the emergency powers to respond to periodic or longstanding societal problems.

Three years ago, the state House and Senate voted to restrict the governor’s emergency powers after then-Gov. Linda Lingle issued and later extended an emergency proclamation to help build homeless shelters on the Leeward coast. Lingle vetoed the bill. The Senate voted to override the veto, but the House chose not to attempt an override, so the bill failed.

At the time, lawmakers said governors should not use their emergency powers to circumvent legislative oversight of public policy issues such as homelessness. Lingle’s proclamation had declared the Leeward coast a disaster area and suspended state procurement and environmental review regulations.

The emergency that nobody knew was an emergency  

According the Honolulu Star Advertiser, Governor Abercrombie’s office said that the failure to notify the public was simply an “oversight”:

Gov. Neil Abercrombie should have notified the public after declaring a civil defense emergency in June to help the U.S. Army Corps of Engineers contain unexploded ordnance, the governor’s spokeswoman said Wednesday.

The Honolulu Star Advertiser editorial “Governor’s decree shows contempt for transparency” was refreshingly sharp in its criticism:

The past three months in Hawaii have not seemed like a disaster emergency, but Gov. Neil Abercrombie has indeed proclaimed a civil defense emergency with the sound of silence, using all the might of his behind-closed-doors authority.

State legislators and their constituents — the general public — have been left in the dark to the governor’s proclamation, as Abercrombie took the unacceptably secretive step on June 14 to suspend nearly two dozen environmental laws for five years, apparently to provide for federal removal of unexploded military ordnance.


The state Department of Land and Natural Resources reported in December that the Corps of Engineers cannot always submit requests for munitions removal far enough in advance to assure funding. The department’s governing board was suggested to allow ordnance remediation to be exempt from state environment assessments, and to increase the DLNR director’s authority over issuing land entry rights.

How that discussion devolved into Abercrombie’s civil defense emergency in June is unclear — even, apparently, to the governor’s office and the Attorney General’s Office, who were unable to supply answers when asked.

So why didn’t the public — along with their legislators — learn of this emergency program three months ago? Environmental activist Carroll Cox calls the delay “cause for alarm. Now under the suspension of the statutes, the governor is free to do anything he wants with state resources without consulting anyone.”

Quite true — and that is why, barring a true emergency, a public process based on governmental transparency must rule the land.

Meanwhile, the Army Corps of Engineers removed several pieces of unexploded ordnance from Hapuna beach, the first activity conducted under Abercrombie’s emergency suspension of state laws:

A hand grenade found Sept. 2 and a 57 mm Japanese mortar round discovered Thursday at Hapuna Beach State Recreation Area on Hawaii island have been detonated by the Army Corps of Engineers as an ordnance cleanup continues there, officials said.

The work being done there by the Army Corps since Sept. 2 represents the first application of a controversial exemption from state law that Gov. Neil Abercrombie granted on June 14, according to officials.



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