Navy drops lawsuit against Hawaii over defueling Red Hill

The U.S. Department of Justice has withdrawn its lawsuit filed in federal and state courts in February contesting the state’s emergency order instructing the Navy to drain its Red Hill fuel tanks.

The order issued by the state Department of Health followed a fuel spill that contaminated the Navy’s drinking water system and sickened residents in neighborhoods around Joint Base Pearl Harbor-Hickam.

“By dismissing its appeals, it is acknowledging that the Department of Health can exercise its emergency authority to keep us all safe,” said Earthjustice attorney David Henkin, who is representing the Hawaii Sierra Club in matters related to Red Hill.

“This is a wonderful Earth Day present to the residents of Oahu,” he added.

A month after attorneys for the Navy sued DOH over its emergency order, Secretary of Defense Lloyd Austin in March ordered the Red Hill fuel facility to be drained and permanently shut down. The decision seemed to put an end to boiling criticism of the Navy and growing calls from Hawaii’s political leadership, as well as the Hawaii Sierra Club and Honolulu Board of Water Supply, to shut down the World War II-era facility.

However, any sense of triumph over the military was tempered by the fact that the Navy did not simultaneously drop its lawsuit against the state as expected, spurring fears it might renege on its pledge. At the time, Department of Justice officials didn’t respond to media questions asking why the lawsuit had not been dropped.

The motions to withdraw the lawsuit were filed in federal and state courts Friday afternoon.

Henkin said the move also signifies the military will likely be on a shorter time frame to drain the Red Hill tanks, as stipulated in the state’s emergency order. Military officials had indicated it could take a year to drain the tanks; DOH had ordered it be done in 30 days.

DOH has said it is amending its emergency order, though details of any changes have not been released.

The Red Hill fuel facility contains 18 active but aging underground tanks that have a long history of leaks.

The Justice Department’s decision to drop the litigation came after 1st Circuit Judge Jeffrey P. Crabtree denied the Navy’s motion to put a hold on legal proceedings.

“It never made any sense for the Department of Justice to waste federal resources appealing the Health Department’s common sense order to urgently and safely defuel these tanks,” said Wayne Tanaka, director of the Hawaii Sierra Club, in a news release Friday. “We are glad that after nearly four long months, they’ve decided to stop wasting time and start fixing this problem.”

U.S. Sen. Brian Schatz, D-Hawaii, said he had been pushing the Department of Defense to withdraw the appeals.

“The legal challenge to the order made it difficult for the state to work cooperatively with the DoD, and dropping the lawsuit paves the way for us to shut down Red Hill this year,” Schatz said in a news release.

Hawaii Congressman Kai Kahele said the decision to drop the appeals reflects the “military’s recognition of its wrongdoing.”

“Too many families have suffered and continue to suffer from the long-term effects of consuming and using the contaminated water,” Kahele said in a news release. “The DoD owes these families and the people of Hawai‘i an apology for their negligence and must do everything in their power to shut down Red Hill and make good on protecting our precious water supply.”

Gov. David Ige and DOH also issued statements applauding the news and saying the state will continue working to ensure the tanks are safely defueled.

The Navy’s plan for closing Red Hill is expected to be ready by the end of May.

The Navy also has withdrawn its application for a state permit to continue operating Red Hill, which was another source of contentious legal wrangling.