Excerpt from Island Son by former State Senator Fred Rohlfing

…(P)ublic support carried no weight at the Hawaii Supreme court.  As soon as they could get their hands on the matter, the justices shot down Act 2.  They ruled that the bill was unconstitutional in that it called for special rather than general legislation—e.g., it was designed for the benefit of one ferry company and not all ferry companies.  The decision came out while the legislature was in session, so ferry supporters hurried to save the company from this potentially fatal blow.  A former attorney general under Governor Ariyoshi, Michael Lilly, was the most prominent in this effort.  In an article in Building Industry magazine March 29, 2009, Lilly said: “the legislature could enact simple language making clear that environmental laws do not extend to secondary impacts as follows: “Significant Effect’ does not include or require consideration of ‘secondary impacts’ on the environment that may result from governmental action.  The latter provision is retroactive to enactment of this chapter.”

Lilly engaged in discussion with Senate President Colleen Hanabusa and other key legislators but was unable to obtain support for his proposal.  Lilly notes in his article that Attorney general Mark Bennett agreed that his proposal was one of five or more solutions to the Superferry dilemma that would have fixed the problem.  Despite being so advised, Hanabusa failed to act.  Voters might remember this failure when they consider her quest to go to Washington DC….  (p193)

Excerpt from article by George Ariyoshi’s Attorney General Michael Lilly: Why Hawaii Lost the Superferry

During the last two months of the 2009 Legislature, I literally begged its leadership to do something. I pointed out that, by one reported poll, some 88 percent of Hawaii's people supported the Superferry. The vast majority of those using the Superferry were not tourists but local Hawaii citizens and businesses. The business provided essential jobs to hundreds of employees during an economic downturn. Love's Bakery's costs to ship bread products to Maui on the Superferry realized a savings of 40 percent. Maui farmers used the Superferry to ship goods to Oahu. A friend of mine on Maui had just signed a contract to ship recycled cardboard on a truck which brought goods to Maui but was returning empty. In a public emergency, the Superferry provided a ready platform to ship Red Cross and emergency supplies and equipment to any island.

In response, Senate President Hanabusa, an attorney, first said I was wrong, that the Supreme Court overturned the state’s EIS exemption because the minor Maui pier improvements were "state funded." Wrong! Here is what the Supreme Court said:

"The exemption was erroneously granted as DOT considered only the physical improvements to Kahului harbor in isolation and did not consider the secondary impacts on the environment that may result from the use of the Hawaii Superferry. ..."

Hanabusa then claimed that the Superferry could use its "other" boat that had its own ramp. Wrong! Unlike her, I asked the Superferry if that was possible. They wrote:

"The answer is no – the ramps are one lane only. … They are designed for use in an emergency. … Large trucks such as Love’s bakery will not fit at all. Embarkation and debarkation would take close to an hour.”

Finally, Hanabusa told me to talk with Atty. Gen. Mark Bennett. When I did, Bennett agreed that my proposal was one of five or more solutions to the Superferry dilemma that would solve the problem. However, as Lt. Gov. Duke Aiona sadly told me, the 2009 Legislature was not going to do anything about it. Except, I might add, raise taxes.

Also, as a consequence, the Supreme Court’s decision became an environmental lawyer’s full-employment act, guaranteeing successful environmental challenges against future government projects based on the failure to consider "secondary" impacts of otherwise minor government projects.

So, who is responsible for the demise of the Superferry?

Senate President Hanabusa, House Speaker Calvin Say and all the other legislators who did nothing to solve the mess.

Does Hawaii deserve its reputation as anti-business?

When I was growing up, my father told me there are some questions that just didn’t need to be answered.

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LINK: Why Hawaii Lost the Superferry

LINK: Island Son