The federal government is taking Hawaii to court over its emergency order requiring the Navy to drain its massive, underground fuel tanks at Red Hill, filing appeals in state and federal courts on Wednesday that argue the state overstepped its authority when it tried to shutter the aging fuel farm that has contaminated Oahu’s groundwater.

The Hawaii Department of Health issued its emergency order Dec. 6 after a November fuel spill at the facility contaminated the drinking water of approximately 93,000 residents in neighborhoods in and around Joint Base Pearl Harbor-Hickam, sickening water users and displacing several thousand military families from their homes.

The order requires the Navy to drain its fuel tanks and assess the safety of the facility before seeking state permission to resume Red Hill fueling operations.

State health officials argued that the water contamination crisis, as well as the facility itself, which has been the site of dozens of leaks over the decades, constituted a sufficient threat to human health and the environment to justify the use of the state’s emergency powers.

However, attorneys with the U.S. Department of Justice argued in Wednesday’s court filings that the Navy has been adequately responding to the current water contamination problems and that the state’s emergency powers relating to underground storage tanks can’t infringe upon long-term planning efforts underway for Red Hill.

“Rather than direct action that may be necessary to remediate the November 2021 release, the final order goes further, effectively seeking to shut down the Red Hill facility itself,” wrote Todd Kim, assistant attorney general for the DOJ’s Environment and Natural Resources Division, in court filings.

Kim said Hawaii law “was not written to address long-term issues, which are the subject of other Hawaii statutes.”

The appeals argue that long-term decisions about Red Hill are the domain of other regulatory proceedings, including a remediation plan handed down by the U.S. Environmental Protection Agency and DOH following a 2014 release of 27,000 gallons of fuel from the Red Hill facility, as well as the Navy’s pending application for a state permit to continue operating the facility.

While contesting the state’s emergency order, the Department of Justice struck a conciliatory tone.

“The U.S. government hopes to resolve its differences with the State of Hawai‘i regarding the final order through negotiation, but files this lawsuit out of an abundance of caution to satisfy the 30-day statute of limitations that Hawai‘i law imposes on judicial review of such orders,” a DOJ spokesman said in a statement.

“There is ongoing, good-faith and senior level engagement at the Department of Defense, the Navy, and the Department of Justice towards a negotiated resolution that protects human health and the environment, as well as our national security.”

However, the decision to appeal the state’s emergency order, which was announced on Monday, has infuriated state and local leaders.

Kathleen Ho, DOH’s deputy director of environmental health, said in a statement released Wednesday that the appeal “proves undeniably the Navy is unwilling to do what’s right to protect the people of Hawai‘i and its own service members.”

“Despite the Navy claiming time and again that it would comply with the DOH emergency order, its actions consistently prove otherwise,” said Ho. “We look forward to taking our fight to court to protect Hawai‘i residents and our environment.”

Also parties to the court proceedings are the Honolulu Board of Water Supply and Hawaii Sierra Club, which in December intervened in a contested case hearing on the emergency order. Both have raised concerns for years that the World War II-era tanks pose too high a risk to a major drinking water source for Oahu. The tanks sit just 100 feet above the aquifer. The Board of Water Supply already has shut down three of its wells to make sure the most recent Red Hill fuel spill doesn’t migrate into its drinking water supply.

Earthjustice attorney David Henkin, who is representing the Hawaii Sierra Club, said that the Navy’s federal court filing “attempts an end run around the bedrock principle of federalism on which our country was founded.”

“State courts, not federal courts, interpret state laws. We will fight vigorously to keep this case in state court, where it belongs,” he said.

Henkin said DOJ officials “think they will have a better role of the dice in federal court,” but that he doesn’t think that’s the case.

DOJ attorneys said in court documents that they are permitted to appeal to federal court because the United States is acting as the plaintiff. They said the filing in state court was done out of “an abundance of caution” in the event the federal court does not take up the matter.

The state appeal was filed with Hawaii’s environmental court where First Circuit Judge Jeffrey Crabtree is expected to preside over the matter. Crabtree has taken up the issue of Red Hill in the past, siding with the Hawaii Sierra Club in 2018 in finding that the state violated the law in exempting the Navy’s Red Hill fuel tanks from regulatory requirements.

DOH’s current emergency order remains in effect as the appeals process plays out. On Wednesday, the Navy met a deadline to submit a required work plan and schedule for assessing the safety of draining the Red Hill tanks. The Navy projects that the assessment will be complete in three months.

DOH said it is reviewing the Navy’s submission.

Growing protests

The decision by top defense officials to appeal the state’s emergency order has further inflamed a growing protest movement that aims to shut down the Red Hill facility.

In anticipation of the court filings, a group called Oahu Water Protectors held a protest Wednesday at the entrance to the U.S. Pacific Fleet Command headquarters.

The site is just a few yards from Halawa Stream, where the Navy has been discharging filtered water from its contaminated Red Hill shaft. The stream flows under Kamehameha Highway into Pearl Harbor.

“I think it’s atrocious that the Navy is going to challenge the order to close down the tanks,” said Ann Wright, a retired Army colonel, who has lived in Hawaii for 20 years. “I’m very, very disappointed in the Navy.”

“It’s Washington that’s making the decisions,” she added, and not the local military officials.

Ann Kamimura, who teaches second graders at Makalapa Elementary School, said she was sign-waving, in part, because the military families cannot.

“I feel like I have to be out here protesting” on their behalf, she said.

“The kids there are so tired,” she said. “They’re still in the hotels, going back and forth. Their education is going down.”

She said one 8-year-old student told her he bathes in the water, but doesn’t wash his face with it.

Janice Shiira, 66, held a sign that says, “No Trust Navy.”

She said that after it reneged on its agreement to comply with draining the tanks at the 11th hour, the Navy cannot be trusted.

Shiira belongs to Loo Choo nu Kwa, a group that supports Okinawans’ fight against the U.S. military, which has also caused environmental harm in Okinawa. “We’re standing in solidarity with them.”

Healani Sonoda-Pale, a member of the Oahu Water Protectors, said the group protested back in 2014 when 27,000 gallons of fuel leaked from Red Hill, “only to be met with the same lies, incompetence, false assurances and unaccountable behavior that the U.S. Navy is currently demonstrating during this current crisis.”

She said the group stands in solidarity with all Oahu water drinkers, calling the fuel tanks “ticking time bombs that can only be defused by defueling them.”

Gina Nani Peterson and Makaio Villanueva performed a chant, or oli, a battle cry “to call upon our people to come and ask where are these waters? Where are the waters that are so precious.”

They are with the group Ea A‘e, which means “to rise up.”

“We call on the people to rise up now,” Peterson said.

U.S. v Dept .of Health Hawaii by Honolulu Star-Advertiser