On November 20th, 2021, the Red Hill Bulk Fuel Storage Facility in Honolulu leaked 14,000 gallons of water and fuel.^[1] The facility, constructed in the early 1940s, holds over 100 million gallons of fuel a mere 100 feet above the Southern Oʻahu Basal Aquifer, the primary source of drinking water for over 400,000 people.^[2] The Navy claimed that the drinking water was safe and that there were no signs of leaked fuel in the environment, but just days later military residents began to complain of bad odors and illness.^[3] On December 3rd, after receiving nearly 500 complaints,^[4] the Navy authorized evacuation and temporary housing for affected residents.^[5]

 

All levels of government responded. On December 6th, the State of Hawaiʻi Department of Health issued an Emergency Order calling on the Navy to halt all operations at Red Hill.^[6] In February, the Honolulu City Council passed new regulations on the facility through Bill 48, and several bills were introduced in the Hawaiʻi State legislature.^[7] Senator Brian Schatz and Representative Kaiali’i Kahele introduced the Red Hill Watershed and Aquifer Initiative Act, which would require closure of the facility.^[8] Soon after on February 18th, President Biden signed a bill into law that included $100 million for the defueling of Red Hill.^[9]

 

Meanwhile, the Navy challenged the Hawaiʻi Department of Health’s Emergency Order, arguing that the department exceeded its emergency powers and authority.^[10] Finally, after weeks of pushback, the Pentagon announced the closure of the facility on March 7th, 2022.^[11] However, the situation is far from over, and is just one example of the troubling history between the military and the environment both on the Hawaiian Islands and elsewhere.

 

How Did We Get Here?

This is not the first time leaks from the Red Hill Bulk Fuel Storage Facility have threatened Honolulu’s drinking water. It happened a mere few months prior in May 2021 and again in January 2014.^[12] The Sierra Club estimates that the facility has leaked 180,000 gallons of fuel over the past 80 years, which pales in comparison to the Navy’s estimate of 1.2 million gallons.^[13] The 2014 leaks prompted the negotiation of an Administrative Order on Consent between the EPA, the Hawaiʻi Department of Health, the U.S. Navy, and the Defense Logistics Agency (DLA) requiring the Navy and DLA to make improvements to the facility to protect human health and the environment.^[14]

 

Despite the history of leaks, the Navy repeatedly claimed that the island’s drinking water was not at risk and refused to respond to calls to upgrade the old, leak-prone tanks. Risk assessments conducted by a firm hired by the Navy, however, indicated a 27.6% chance of a leak of up to 30,000 gallons of fuel during any given year.^[15] The Navy downplayed these findings and instead opted for a plan to fortify or defuel the facility by 2045.^[16] The Honolulu Board of Water Supply was one of the main actors to push back, accusing the Navy of misinformation and lack of transparency.^[17]

 

The Red Hill saga is unsurprising. National security almost invariably takes precedence over environmental concerns.[18] The President has the power to issue military exemptions from environmental laws and regulations, including the Clean Air Act, the Clean Water Act, and the Endangered Species Act.^[19] Further, the military is often subject to directives that conflict with environmental laws.

 

While the Red Hill facility is still subject to numerous environmental laws and regulations, there have been some key exceptions. The Red Hill tanks are field-constructed.[20] Until 2015, field-constructed tanks, all of which are owned by the federal government, were exempt from regulation under 40 CFR Part 280, except from Subparts A and F.[21]  The exemption included general operating requirements, release detection, and release reporting and investigation, operator training, and other provisions intended to prevent disasters like Red Hill.[22]

 

National security also takes precedence over environmental concerns through the U.S. government classification system.[23] The location of military installations is often classified information, shielding them from public outcry over environmental effects. The Red Hill facility was constructed in secret, and it remained a secret for over 50 years until it was declassified in 1995.[24] But the public remained unaware of the tanks’ existence until fuel ended up Honolulu’s the drinking water.[25]

 

In Hawaiʻi, exemptions and classification are not the only drivers of environmental degradation—the military also benefits from a long history of exploitation of the islands. Many military facilities in Hawaiʻi, including Red Hill, were built long before any environmental protection statutes were enacted and before Hawaiʻi became a state. The legal history of Hawaiʻi has made the island particularly vulnerable to environmental degradation at the hands of the military.

 

The Call for Demilitarization

Hawaiʻi is one of the most heavily militarized places on Earth, yet the relationship between the U.S. government and Hawaiʻi is, and always has been, illegitimate.^[26] The United States began laying the groundwork for Hawaiʻi’s militarization in 1842, when President John Tyler claimed Hawaiʻi as part of the United States’ sphere of influence.^[27] Hawaiʻi has long been an important component of not only military strategy, but also the United States’ influence in the Pacific and relations with Asia more broadly, including trade.^[28] After the United States overthrew the Hawaiian monarchy in 1893 and Congress passed a resolution annexing the islands in 1898, militarization skyrocketed.^[29]

 

Today, the military, including dependents and veterans, make up 16% of Hawaiʻi’s population and control 22.4% of the island of Oʻahu and approximately 5% of the total land of the Hawaiian Islands, or 205,925 acres.^[30] Native Hawaiians, or Kanaka Maoli, who face disproportionate levels of homelessness, poverty, disease, and incarceration, make up only 19% of the population.^[31]

 

Kanaka Maoli and local groups have been resisting militarization for decades. Militarization has resulted in the loss of ancestral lands, cultural resources, subsistence, and cultural integrity.^[32] The military has been a driver of significant environmental degradation throughout the islands and surrounding waters, including contaminated soil and groundwater, radioactive waste, unexploded ordnance, electromagnetic radiation, test explosions, and ocean dumping.^[33] Organizations like Mālama Mākua, DMZ Hawaiʻi / Aloha ‘Aina, and O‘ahu Water Protectors^[34] have worked to call attention to the environmental and cultural damage the military has caused throughout Hawaiʻi.

 

The uniting of Kanaka Maoli and military families played an essential role in pushing the Navy to close Red Hill.^[35] While Kanaka Maoli have suffered from the effects of militarization and imperialism for decades, it was only until military personnel were adversely affected that the Navy was forced into accountability, albeit too late. Meanwhile, the islands remain inundated with hundreds of contaminated sites and surrounded by thousands of dumped bombs and drums of waste, affecting Kanaka Maoli cultural resources and cultural integrity.^[36] Whether the military will ever address these atrocities remains to be seen.

 

Moving Forward

The Red Hill controversy does not end with the Pentagon’s announcement of closure. During the closure process the Navy’s ability to be transparent and forthcoming will be put to the test. If the defueling process is not handled properly, more fuel could be leaked into the aquifer. What’s more, the fuel that has already leaked will not disappear instantaneously; it will take time and money to make the water safe again.

 

Hawaiʻi has long been considered a linchpin of national security and military strategy in the Pacific.^[37] The Red Hill disaster, however, reveals the cost of giving the military too much leeway. Despite the comprehensive networks of laws and regulations protecting the environment in the United States, the military has a great deal of power to skirt these protections in the name of national security, even if it puts the health of American citizens at risk. As indigenous peoples all over the globe demand greater respect of their culture and sovereignty, the military may be increasingly called upon to address environmental injustices in Hawaiʻi, both past and present. In the words of Board of Water Supply Manager and Chief Engineer Ernest Lau, “Hawaii has taken center stage in this issue and the world is watching. How the Navy responds will determine how much faith and confidence Americans will have in the military for all future endeavors.”^[38]

 

 

^[1] HNN Staff, Investigation Underway Following Leak at Navy’s Red Hill Fuel Storage Facility, Hawaii News Now (Nov. 22, 2021), https://www.hawaiinewsnow.com/2021/11/22/investigation-underway-following-leak-navys-red-hill-fuel-storage-facility/.

^[2] Sierra Club of Hawaiʻi, https://sierraclubhawaii.org/redhill (last visited Mar. 14, 2022).

^[3] Associated Press, HPR News Staff, Navy Says 14K Gallons of Fuel and Water Leaked from a ‘Drain Line’ Near the Red Hill Facility, Hawaiʻi Public Radio (Nov. 22, 2021), https://www.hawaiipublicradio.org/local-news/2021-11-22/navy-says-14k-gallons-of-fuel-and-water-leaked-from-a-drain-line-near-the-red-hill-facility; Sophia McCullough, Confused About the Timeline for the Red Hill Fuel Storage Facility and Contaminated Water? Read This., Hawaiʻi Public Radio (Mar. 1, 2022),  https://www.hawaiipublicradio.org/local-news/2021-12-21/confused-about-the-timeline-for-the-red-hill-fuel-storage-facility-and-contaminated-water-read-this.

^[4] Hawaii Dep’t of Health, Dkt. No. 21-UST-EA-02 (2021).

^[5] McCullough, supra note 4.

^[6] Hawaii Dep’t of Health, Emergency Order, Dkt. No. 21-UST-EA-02 (2021).

^[7] Bill 48(21), CD2, City and County of Honolulu (2021); Christina Jedra, Hawaii’s Congressmen Hope A New Bill Will Force The Navy To Close Red Hill, Honolulu Civil Beat (Feb. 11, 2022),  https://www.civilbeat.org/2022/02/hawaiis-congressmen-hope-a-new-bill-will-force-the-navy-to-close-red-hill/.

^[8] Id.

^[9] HNN Staff, President Signs Bill into Law That Includes $100M for Emptying Red Hill Fuel Tanks, Hawaii News Now (Feb. 17, 2022), https://www.hawaiinewsnow.com/2022/02/18/bill-allot-federal-funding-defuel-red-hill-fuel-facility-be-signed-into-law/. See H.R.6617, 117th Cong. (2022) (enacted).

^[10] U.S. v. Hawaii Dept. of Health, No. 1:22-cv-00051 (D. Haw. filed Feb. 2, 2022).

^[11] HNN Staff, Pentagon Announces Plan to Empty Red Hill Fuel Tanks, Close Facility, Hawaii News Now (Mar. 7, 2022), https://www.hawaiinewsnow.com/2022/03/07/pentagon-expected-announce-permanent-closure-red-hill-facility-amid-water-crisis/.

^[12] Memorandum from the Commander, Naval Supply Systems Command on Command Investigation into The Fuel Spill at The Red Hill Bulk Fuel Storage Facility on or About 6 May 2021 (Oct. 14, 2021), available at https://www.boardofwatersupply.com/bws/media/redhill/ocr-red-hill-jp5-spill-command-investigation-report-final-redacted-2021-05-06.pdf; Alaa Elassar and Raja Razek, Honolulu Shut Down Its Largest Water Source in Oahu Due to Reported Contamination of Navy Well Near Pearl Harbor, CNN (Dec. 5, 2021), https://www.cnn.com/2021/12/05/us/honolulu-halawa-shaft-water-source-contamination-navy-well-oahu/index.html.

^[13] Sierra Club of Hawaiʻi, https://sierraclubhawaii.org/redhill (last visited Mar. 14, 2022) citing Historical Data of Tank Releases, available at https://static1.squarespace.com/static/5e28fa5870afe4486a9e6a2d/t/5e41c60851ea52024aa67e03/1581368841948/Red-Hill-Historical-Data-of-Tank-Releases.pdf; Sophie Cocke, Officials: Threat to Oahu’s Water Supply More Serious Than Thought, Honolulu Civil Beat (Mar. 8, 2022), https://www.civilbeat.org/2014/03/21411-officials-threat-to-oahus-water-supply-more-serious-than-thought/.

^[14] U.S. Dept. of the Navy, Administrative Order on Consent, EPA Dkt. No. RCRA 7003-R9-2015-01 (2015).

^[15] Christina Jedra, Navy Resists Calls To Relocate Or Strengthen Red Hill Fuel Tanks, Honolulu Civil Beat (Oct. 18, 2021), https://www.civilbeat.org/2019/10/navy-resists-calls-to-relocate-or-strengthen-red-hill-fuel-tanks/. See also ABS Consulting, Quantitative Risk and Vulnerability Assessment Phase 1 (Internal Events without Fire and Flooding) (2018), available at https://www.epa.gov/sites/default/files/2019-06/documents/red_hill_risk_assessment_report_redacted-2018-11-12.pdf.

^[16] Christina Jedra, Navy Resists Calls To Relocate Or Strengthen Red Hill Fuel Tanks, Honolulu Civil Beat (Oct. 18, 2021), https://www.civilbeat.org/2019/10/navy-resists-calls-to-relocate-or-strengthen-red-hill-fuel-tanks/.

^[17] Letter from Ernest Y. W. Lau, Manager and Chief Engineer to President Joe Biden (Dec. 20, 2021), available at https://www.boardofwatersupply.com/bws/media/redhill/red-hill-tanks-navy-water-system-letter-to-president-biden-2021-12-20a.pdf.

[18] See generally Hope Babcock, National Security and Environmental Laws: A Clear and Present Danger?, 25 Va. Envtl. L.J. 105, 110 (2007).

^[19] Kurt Smith, Environmental Protection, the Military, and Preserving the Balance: “Why it Matters, in War and Peace” 11 Seattle J. of Tech, Envtl. & Innov. L. 112, 120 (2020).

[20] U.S. Navy Red Hill Bulk Fuel Storage Facility, State of Hawaii Dept of Health, https://health.hawaii.gov/ust/ust-home-test/ust-red-hill-project-main/#background (last visited April 13, 2022).

[21] Industrial Economics, Inc, Assessment Of The Potential Costs, Benefits, And Other Impacts

Of The Final Revisions To EPA’s Underground Storage Tank Regulations 2-1 (Apr. 2015), available at https://www.epa.gov/sites/default/files/2015-07/documents/regs2015-ria.pdf.

[22] 40 C.F.R Part 280 (2022).

[23] The classification system was established by a series of executive orders, most recently Exec. Order No. 13526, 75 FR 707 (Dec. 29, 2009).

[24] S. 437, 115^th Cong. § 3(15) (2017), available at https://www.govinfo.gov/content/pkg/BILLS-115s437is/html/BILLS-115s437is.htm.

[25] Audrey McAvoy, US Military Faces Crisis in Hawaii After Leak Poisons Water, Associated press (Feb. 5, 2022), https://apnews.com/article/science-business-navy-veterans-hawaii-16c3422dd7463ca7a5ef588c50dd44ee.

^[26] Kyle Kajihiro, The Militarizing of Hawaiʻi Occupation, Accommodation, and Resistance, in Asian Settler Colonialism 170, 174 (Candace Fujikane and Jonathan Y. Okamura eds. 2008).; Pub. L. No. 103-150, 107 Stat. 1510 (1993) (“apologizes to Native Hawaiians on behalf of the people of the United States for the overthrow of the Kingdom of Hawaii on January 17, 1893 with the participation of agents and citizens of the United States, and the deprivation of the rights of Native Hawaiians to self-determination”).

^[27] Kajihiro, supra note 24 at 171.

^[28] Id.

^[29] Id. at 172.

^[30] Id. at 174, 177.

^[31] Id. at 177.

^[32] Id. at 176.

^[33] Id. at 178. See also Ann Wright, Kyle Kajihiro, and Jim Albertini, The History Of US Military Pollution In Hawaii Is Extensive, Honolulu Civil Beat (Jan. 27, 2021), https://www.civilbeat.org/2021/01/the-history-of-u-s-military-pollution-in-hawaii-is-extensive/.

^[34]Mālama Mākua, https://www.malamamakua.org/ (last visited Mar. 14, 2022); DMZ Hawai’i / Aloha ‘Aina, http://www.dmzhawaii.org/ (last visited Mar. 14, 2022); Oʻahu Water Protectors, https://oahuwaterprotectors.org/ (last visited Mar. 14, 2022).

^[35] Christina Jedra, How Hawaii Activists Helped Force The Military’s Hand On Red Hill, Honolulu Civil Beat (Mar. 14, 2022), https://www.civilbeat.org/2022/03/how-hawaii-activists-helped-force-the-militarys-hand-on-red-hill/.

^[36] Kajihiro, supra note 24 at 178; Ann Wright, Kyle Kajihiro, and Jim Albertini, The History Of US Military Pollution In Hawaii Is Extensive, Honolulu Civil Beat (Jan. 27, 2021), https://www.civilbeat.org/2021/01/the-history-of-u-s-military-pollution-in-hawaii-is-extensive/.

^[37] Kajihiro, supra note 24 at 174.

^[38]  Letter from Ernest Y. W. Lau, Manager and Chief Engineer to President Joe Biden (Dec. 20, 2021), available at https://www.boardofwatersupply.com/bws/media/redhill/red-hill-tanks-navy-water-system-letter-to-president-biden-2021-12-20a.pdf.