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Editor’s note: The Civil Beat Editorial Board spoke on Friday with Nani Medeiros, Hawaii’s chief housing officer, and Scott Glenn, a senior advisor on housing to Gov. Josh Green. This interview has been edited for length and clarity and with on eye on future stories. Medeiros began by responding to criticism from some that the governor’s emergency proclamation on housing may bulldoze laws on land use, historic preservation and environmental review , allowing development to go unchecked.

Medeiros: I don’t think that we have crafted the emergency proclamation in a way that it bulldozes over anything. We actually adopted the opposite approach, and we learned from emergency proclamations that have been rolled out by previous administrations, by Gov. (David) Ige throughout his term, when we rolled out the emergency proclamation on homelessness — really listening to feedback and concerns that we had already seen from previous emergency proclamations from the public. So rather than just sort of taking an ax all over (Hawaii Revised Statutes), we approached it with a scalpel.

We really looked at where there was just one section in an entire chapter that needed to be addressed, we addressed that one section. In addition to whatever was suspended — for example, (the environmental impact statements law), Chapter 6E (the historic preservation law including on burials) where we could create a new alternative process for projects specifically certified under the EP, we created that process and we created it via emergency rules, which also come with the emergency proclamation.

So I think that we actually did a very thorough job in not just suspending things and throwing them away. And we spent about six, seven months creating the EP while soliciting active feedback and comments from the process owners at the state and city and county levels that are actually doing this work, and hearing directly from them what they identified as challenges and what they identified as solutions that could help them.

And then we listened to advocates, whether they were housing advocates, people who want homes, environmental advocates, Hawaiian cultural practitioners and experts. We sought comments back from a lot of people during those six or seven months. And all of that helped to inform the final product that you see.

But we also understand the final product is not set in stone. If there are things that as we implement this and roll out we recognize aren’t working, can be improved, aren’t necessary, we will change the EP accordingly.

This is a quote from the Sierra Club, which has been part of the working group, from Wayne Tanaka: “The working group places in the hands of a very select few the power to suspend a range of protections, not just for the environment.” Your response to that?

Medeiros: A couple of things. The working group doesn’t have the power to suspend anything. Suspensions are laid out in the emergency proclamation. The working group is brought together to sit around the table. All of the same agencies that currently deal with housing at some point in their processes — the Commission on Water Resource Management, the State Historic Preservation (Division), the Land Use Commission, county planning agencies, planning directors — they’re all around that table.

We have not done anything to suspend their internal processes either. So the project is going through the. They still have to go through the HHFCD staff review process, board approval process. Same thing with the Department of Hawaiian Home Lands. Same thing with the Hawaii Community Development Authority — all those agencies. And even at the county level, the county council’s, they still all have their processes in place.

We convene the working group to get everyone around the table at the same time and collectively understand what the project is, and then make a decision as to whether or not it should be approved and be able to benefit from some of the suspensions or all of these suspensions under the emergency proclamation.

The governor has stressed transparency. He says this is going to be transparent, but the Sunshine Law, of course, will not be applied to the working group. How will the public be involved? How will we know what’s going on since we can’t actually be in those meetings?

Medeiros: We are still actually working on what public participation or observation and viewing is going to look like for the working group. We’re still working out those details and we’re definitely open to figuring out what that does look like. Do we televise on Zoom? Do we televise on YouTube?

The suspension of HRS (the public agency meetings and records law) was more so to allow for its commissions, councils to move quicker, to have meetings more often without having to (give public) notice. Current law prohibits notice less than six days. The suspension would allow boards and commissions to meet with five days notice or less. Five, four, three, two, one.

Say, for example, a neighborhood board wanted to have a project that was coming up in their neighborhood, which they’ve heard might apply for consideration under the EP, and they put it on the agenda. But maybe they don’t finish a thorough enough discussion that they want for that project. Rather than having to wait for the next board meeting the following month, they can schedule another meeting within the next day or two. Continue that conversation, continue getting feedback.

Is this also in part because you have just one year to pull this all together and time is of the essence to suspend 92?

Medeiros: Yes, it is. And it also it also addresses quorum issues. So sometimes our boards and commissions don’t have quorum. I experienced that myself personally on the boards I sit on in the capacity of working for the governor. We also know that our Island Burial Councils in particular don’t have quorum, a number of them currently. This will allow them to still meet, have fruitful discussions so you can get public input within the meetings of their own bodies.

Is it possible that EP could be extended beyond a year?

It is possible. I can say from my perspective in my role there would have to be really compelling reasons to do so.

The emergency proclamation every 60 days would need to be signed. We’re saying no longer than 12 months. Unless compelling reasons. But at the same time, that means it might not be 12 months. It depends on what we see as it’s being implemented, and if things are successful — for example, if the Legislature were to codify some things and then sunset them and we don’t need the EP any more — then the EP should go away.

Okay. HRS 92 on meetings waived, but — UIPA (the Uniform Information Practices Act) — not waived. The public records law is still in place. We can still ask for public records, etc.?

Medeiros: Correct.

Okay. Then we look at Page 4 of the rules and we have this lengthy application process with lots of information that they have to submit. And my question is, is that — the certification application material — will that be public? Can we get that?

Medeiros: We do have plans to put information for projects at this point, including the application, on our web page. So that means that that you’ve gone to and see the governor’s website, that will continue to be built out with additional information as project applications come in, as development agreements are executed, as we continue to monitor the projects and make sure that they’re in compliance with that development agreement. We’re going to make as much of that public as we can.

So we will be able to see those and pretty much see them in something close to real time as they come in.

Medeiros: Mm-hmm.

Glenn: And I also note that a lot of these materials are available through the individual agencies websites, and this is consolidating them into one spot.

Okay. Interesting. Also on Page 5 we have a long section — about public input. And there’s at least one public meeting (requirement). There’s a public notice and public comments. There’s consultation with stakeholder groups. Is that also going to be a matter of public record that we could get — things like the public comments that are submitted, written comments that are submitted under this provision?

Medeiros: Given that this is all going to be included in the application and throughout the process of projects that want to be certified under the EP, I’m inclined to say “yes.” If something happens as we go through this process where, for some reason, if there’s a legal issue that it’s not possible, we’ll deal with it at that time. But at this point, our intention is yes, to make that public.

Glenn: One example often under Chapter 343, for example, is if someone in a comment letter specifically identifies the location of an endangered species, that’s generally something that is usually kept at a very high level and not saying, “Oh, this bird lives in this tree or this iwi (bones) is on this corner.” Generally that information is not something that’s specific to be made available to the public.

Given all of this, which is quite a lot of public input, could the project go forward even if there’s a lot of opposition from the public or a lot of concern? Is it going to be allowed to go even if the public input from many people says, “We don’t like it”?

Medeiros: I think that’s going to be a case-by-case situation. And mostly because putting together a project and addressing housing in general, it’s a very complex problem. It’s a puzzle. Now, I would want to understand those reasons for community opposition and kind of look at it from a very balanced perspective. I’d want to know, first of all, what’s the project providing?

My intention is not to ram projects down communities’ throats.

Nani Medeiros

I mean, if it’s 100% affordable plus low-income housing in there, and there’s no other affordable housing project in that area and there’s data that shows there is a demand and nothing else in the pipeline, I would want to really sit and understand and talk with those who have the concerns, see if there’s some kind of a way that the concerns could be addressed. Is it the design of the project? Is it the height, the density? See if we can work something out, if there is in fact a deep need in their own community for affordable housing and for workers to live there.

But also at the same time, my intention is not to ram projects down communities’ throats without understanding if there are concerns, what they are.

So a project may also be allowed to proceed under the proclamation if it’s a state or county project without certification. Are these — for instance, the Hawaii Public Housing Authority projects that were announced the other day — would they be allowed to proceed without certification?

Yes. It is also the Department of Hawaiian Home Lands and their $600 million, and it is the HHFDC, its county housing agencies. We think that by empowering our government agencies that oftentimes have special resources, whether it’s direct funding or financing programs and tools, empowering them even more so to move as quickly as they can is what this provision is about.

They still have to abide by all the rules. They still have to abide by all of the provisions that go along with the requirements benefiting from the emergency proclamation. They will still have to abide by all of the rules within their own agency. We’re not suspending any of that.

And I will be there to help them as they need. And should they at some point decide “We could benefit actually from using the expertise of the working group, the coordination of the working group,” we will be there to assist them as well.

Page 14. And the lead housing officer or the proposing or approving agency shall make a determination. This is kind of like the FONSI (Finding of No Significant Impact) that you guys or the proposing agency are doing. What is the “proposing or approving agency” in this case? Who is that? What does that mean?

Glenn: “Proposing and improving agency” is language drawn directly from 343 and the (state’s) administrative rules.

That’s the term of our use to describe whether the agency itself is proposing to do a project, or if a private party is coming to the agency for a permit to do the project. So, agency action versus applicant action.

And the language about “make a determination about likely to cause,” that’s the significance test in 343. And so I think what this language is saying is the normal process applies that this agency will make a significance test. And if it says it’s not likely to have these things, then it’s eligible for an exemption and so it can move forward.

The FONSI comes into play if the agency says we’re not sure you need to do an environmental assessment. And then after doing an EA, they say OK now we’re convinced there’s no impact. You can get a FONSI and move forward.

Somebody has said, “Well, we don’t think Nani has the expertise to be making these evaluations.” What do you say to people who say that?

Medeiros: That’s why we have the working group. These are things that the proponent has to come to us and apply for. They don’t just get it and then come to us and want certification. They have to apply for that exemption. And within the criteria of the application, which you kind of went through it, they are also required to provide an assessment of environmental impacts, of cultural impacts. In the guidelines, if you know you’re in a highly sensitive area, just start your archeological inventory survey. You can still come in, apply to us, but start all of that work. If you know you are in the place and if you have the right consultants, my understanding is, you will know.

So start that on the front end. They have to list every kind of suspension that they’re asking for through the emergency proclamation. So if they identify 343, when the working group as a whole sees that application, we’re going to reach out to the Office of Planning, who’s on that group, Department of Health, Scott (Glenn), (consultant) Trisha Watson. We have those experts there for that reason. In addition to who’s on the working group, if there’s an area of expertise that’s not represented, but we want, we can invite subject matter experts to help us deliberate further and provide information, analysis.

We used a scalpel approach to suspensions, and developed alternative processes where we could.

Nani Medeiros

So again, to clarify, if it comes down to it and there is significant impact, there’s no FONSI issued, there still could be an environmental impact statement required under this procedure.

Yes.

When you’re weighing public comment and concerns of people, it really does seem like it’s going to take a very close look and involved discussion to understand the difference between really — I’m just going to call them — valid public health, safety, welfare, environmental concerns, cultural concerns versus NIMBY-ism. And it sounds like you really are going to try to make that distinction between the two.

Medeiros: Yes, we are.

What’s the reaction been that you’ve hearing? I told you about what we’re hearing through our comments and others, but I’m wondering what is the fifth floor or your office, the housing office, the reaction been since the governor’s announcement, which was unveiled pretty impressively — the mayors, members of the Legislature and so forth. How’s that been going over?

Medeiros: For for me, it’s been predominantly positive. And it could be that people aren’t talking to me directly. I recognize that. For me, the sort of really only loud kind of negative feedback we got stemmed from the comments from Wayne Tanaka and Sierra Club, which were unfortunate because you can see in the details that we really have done a lot of work that addresses and protects cultural impacts and environmental impact and provides public input at several levels. But other than that, you know, it’s been okay.

Have you had conversations with Wayne and the Sierra Club? Because he’s part of the working group. Have you talked subsequently?

Medeiros: I have not spoken with him since.

Did you talk to him before, and what did he say?

Glenn: So the Sierra Club has been invited to be a part of the development of the different concepts (in the EP). Nani and her team were reaching out quite a bit before I joined the governor’s office. And so I personally saw I think one or two meetings, a meeting with Wayne and talking through these various issues. The feedback generally has been to try to think more about how these issues connect together. A lot of the issues that are in here, I think, are things that were raised in these working group discussions of how to vet out this.

And Nani has been using the metaphor of the scalpel the whole time. The standard practice of an emergency proclamation is the governor just identifies the statute and says it’s suspended. Take, for example, the Uncle Billy’s emergency proclamation (for the abandoned Hilo hotel) — 343 is entirely suspended for that with no supplemental language or emergency rules and alternative procedures. Nothing has been put in place. HRS 6E is also entirely suspended for it. That’s a standard approach to an emergency proclamation.

And so I think Nani’s really been trying to figure out what is the actual part of the problem and in helping get feedback from folks like Wayne, others as well. So they have been contributing to that. And I think the integration of it is here, and I think these questions being asked are helping to really make it clearer. I think we left it at kind of that with Wayne.

Medeiros: The Sierra Club actively contributed to the crafting of the emergency proclamation and rules, and I valued their feedback and direct input. We used a scalpel approach to suspensions, and developed alternative processes where we could, particularly in areas that have been addressed recently by the Sierra Club. The Sierra Club was part of this work and it has resulted in an emergency proclamation and rules with meaningful guardrails for the environment, cultural impact, and opportunities for public input. I hope they continue to work with us to develop new solutions and bring their voices and perspective to the serious deliberations of the working group.

So the burial council has 60 days under this to make a decision on the plan if it applies to them. Is that part of what you’re doing — you’re making a faster decision? Because this can really hold things up a long time.

Medeiros: Currently my understanding is Island Bureau Councils only review if the iwi are found to be Native Hawaiian. Under the emergency proclamation, we’re giving them the opportunity to review burial plans for all the iwi that are found. So we’re actually empowering them a little bit more.

And this is from direct feedback from former Island Burial Council members wanting to really empower them and give them the opportunity to have a say in those burial treatment plans, if it’s removal or preservation. After 60 days, I think in one circumstance it goes to the State of Hawaii Historic Preservation Division and in another circumstance it gets approved.

Clarification: After this story was published, Medeiros asked to clarify her remarks about Island Burial Councils. Currently, there is only a review if iwi are found during an archaeological inventory survey. Under the emergency proclamation burial councils will have the opportunity to review all Hawaiian burials regardless of whether they are found during an AIS, archaeological monitoring, or during construction. It also requires them to make the decision within 60 days.

Scott, you administered the 343 previously, right? That was your role. How different is this current one from the previous laws and rules?

Glenn: I would say it’s using the existing rules and moving a decision point. The existing rules say to make a decision about significance as early as practicable time. And that’s usually by the agency –that’s the lead agency, whether it’s the proposing agency or the approving agency. And sometimes there’s a conflict there on which agency is the one that has to make the decision. And 343 has provisions in there for what to do if agencies can’t agree on who is responsible.

(Nani) mentioned HHFDC. So HHFDC has to do 343 before they make a decision as a board. And so to Nani’s example of HHFDC, it’s still going to be the one awarding the financing. They’re still going to make that significance determination and say, “This is an exemption or you need to do an environmental assessment, or you need to do an EIS.” And they’re going to bring that to the working group. And the working group is going to hear from HHFDC and say, “We made this decision.”

It’s a brand new, first kind of hope that we are putting out there and giving to people to see if we can, in fact, produce more housing or affect the cost of housing and move that needle.

Nani Medeiros

And so that’s the intersection of this process. And so rather than saying because 343 is suspended, no one has to think about it, HHFDC, just award the money. Or you can just go do something. This is still there. It’s the existing process. It’s now called out and coordinated and said make sure you’re making that significance determination.

And if the agency’s coming in, if HHFDC is saying, “This is exempt, we’ve done our job. We think it’s exempt,” then that’s one of the criteria Nani identified for now being able to come under the EP. And then if the agency says, “We think an EA needs to be done,” then I think the way you’ve laid this out is, “You can’t come under the EP then until you’re done with your EA.”

Is there something from either of you that we have not addressed to help us understand this emergency proclamation on housing?

Medeiros: So one of the things that we discovered throughout city, county and state agencies that somehow touch housing permits, plans, approvals, is that they are all way below capacity. And at both county and state levels, the hiring process is cumbersome, complex and long. It can take almost six months to onboard in the state. By then, that person who wanted the job has probably found another job and moved on. So on top of not getting projects through fast enough, we don’t have the staff in all of these agencies to move these reviews and approvals quickly.

So some of the suspensions, particularly around civil service, collective bargaining, (the civil service law) is to allow agencies to hire non-civil service exempt for up to a year for third-party reviewers, give them a bit more flexibility in hoping that they can all staff up. One of the counties told us if they could hire third-party reviewers, they can get their planning, their permit approvals down from 300 days to 30. So we’re giving them the opportunity to do that.

I got a call since we signed the EP from the Board of Water Supply, very grateful for what the EP does to try to expedite hiring of filling positions at SHPD because they’ve got, I think they said, six projects. So one small piece of the puzzle, but yet really meaningful if we can staff up a lot of our agencies.

Okay. Final point?

Medeiros: I’m very excited about the opportunity of doing something that hasn’t been tried before and testing out some bold, creative, daring ideas that have been suggested for decades. I think every state report or study that’s been done in housing over the last 20 years have all suggested we need to reduce regulations, we need to streamline regulations. So we’re taking a chance in doing that and testing some of these things out and see if they work. We will closely monitor them.

But it’s a brand new, first kind of hope that we are putting out there and giving to people to see if we can, in fact, produce more housing or affect the cost of housing and move that needle — if government itself strips away some of what we’ve put out there and the challenges and roadblocks we have put out there.