Hawaii Superferry
From Lingle2012 Fact v Myth
The Hawaii Supreme Court’s Superferry decision was a major departure from well-established law that Governor Lingle and the Legislature relied upon in funding and carrying out infrastructure upgrades for the Superferry’s operation.
In fact, when the State Department of Transportation (DOT) reviewed the necessary harbor improvements for the Superferry’s operation in Hawaii, it processed the exemptions in the same way as it had for other harbor improvements in the past.1 Prior to DOT’s exemption determination, it consulted with the Office of Environmental Quality Control (OEQC) regarding whether an exemption from the environmental review process was appropriate for the proposed improvements.2 OEQC believed that the proposed improvements fell within the scope of work described in the Department of Transportation’s approved exemption list.3
After the DOT and OEQC agreed that the exemptions were suitable and appropriate in this situation, DOT solicited input from the City & County of Honolulu, Kauai County, Maui County and Hawaii County, and none raised opposition or objection to the exemptions at the time.4 Despite this agreement and DOT’s decision to build a barge for Kahului versus notch the existing pier 2, Superferry opponents remained dissatisfied and filed a lawsuit in the Maui Circuit Court to challenge the exemptions.5 In July 2005, the Court found that DOT did not have to perform an environmental assessment of the harbor improvements and that DOT’s exemptions were lawful.6 Unsatisfied, the Superferry opponents appealed the decision to the Hawaii Supreme Court. Over two years later, on August 23, 2007, the Hawaii Supreme Court issued an Order reversing the lower court’s decision.7 This Supreme Court decision significantly altered the way DOT processes these exemptions.
Determined to provide Hawaii residents and businesses with an alternative means of travel between the islands, Governor Lingle worked with Democrat House Speaker Calvin Say and then-Senate President Colleen Hanabusa, to convene a special session of the Legislature.8 The legislature passed bipartisan legislation (Act 2) to effectively allow the Superferry to operate while the environmental statement was prepared.9 The bill became law with Governor Lingle’s signature on November 2, 2007.10 Citing Act 2, the DOT and Superferry petitioned the Circuit Court to lift its order prohibiting operation.11 The Circuit Court agreed that Act 2 permitted the Superferry to operate.12 Again, protesters appealed this decision to the Hawaii Supreme Court.13
On March 16, 2009, the Supreme Court ruled the legislative bill unconstitutional.14 Faced with substantial operational losses, Superferry declared bankruptcy and departed the state of Hawaii.15
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1Respondent’s Brief, Sierra Club v. State of Hawaii Dep’t of Trans. I (2007) (21) (“Pursuant to HAR § 11-200-8(a) and upon review and concurrence by the Environmental Council, the State of Hawaii department of Transportation issued its Comprehensive Exemption List.”).
2Respondent’s Brief, Sierra Club v. State of Hawaii Dep’t of Trans. I (2007) (22) (“In reviewing the proposed minor improvements to Kahului Harbor, DOT sought OEQC’s advice specifically pertaining to the improvements at Kahului Harbor . . . OEQC director Genevieve Salmonson confirmed that ‘OEQC believes that the proposed improvements fall within the scope of work described in the Department of Transportation’s approved exemption list.”).
3Respondent’s Brief, Sierra Club v. State of Hawaii Dep’t of Trans. I (2007) (22) (“In reviewing the proposed minor improvements to Kahului Harbor, DOT sought OEQC’s advice specifically pertaining to the improvements at Kahului Harbor . . . OEQC director Genevieve Salmonson confirmed that ‘OEQC believes that the proposed improvements fall within the scope of work described in the Department of Transportation’s approved exemption list.’”).
4Respondent’s Brief, Sierra Club v. State of Hawaii Dep’t of Trans. I (2007) (22) (“DOT [consulted] with Agencies and individuals with jurisdiction or expertise as to the propriety of the exemptions . . . As defined by HEPA and the EIS Rules, an “Agency” includes ‘any department, office, board or commission in of the state or county government which is part of the executive branch of that government.”).
5Defendants-Appellees Answering Brief, Sierra Club v. State of Hawaii Dep’t of Trans. I (2007) (2) (“Proposed improvements necessary to accommodate Hawai’i Superferry at Kahului Harbor are: a removable barge (floating platform) that will be moored at pier 2 to provide a platform between the vessel and the pier for passenger loading and off loading”); Hawaii Superferry Decision Based on Law, Christie Wilson, Honolulu Advertiser (http://the.honoluluadvertiser.com/article/2007/Oct/10/ln/hawaii710100418.html) (“The court case stemmed from a March 2005 complaint filed by the three groups objecting to the state’s exemption of the ferry-related harbor projects. Cardoza dismissed the complaint in July 2005, saying the groups lacked standing in the case and that the state had followed proper procedures under Chapter 343 in granting the exemption. His ruling earlier cleared the way for the company and the state to proceed with their plans.”).
6Hawaii Superferry Decision Based on Law, Christie Wilson, Honolulu Advertiser (http://the.honoluluadvertiser.com/article/2007/Oct/10/ln/hawaii710100418.html) (“The court case stemmed from a March 2005 complaint filed by the three groups objecting to the state’s exemption of the ferry-related harbor projects. Cardoza dismissed the complaint in July 2005, saying the groups lacked standing in the case and that the state had followed proper procedures under Chapter 343 in granting the exemption. His ruling earlier cleared the way for the company and the state to proceed with their plans.”).
7Sierra Club v. State of Hawaii Dep’t of Trans. I 115 Haw. 299 (2007).
8Sierra Club v. State of Hawaii Dep’t of Trans. II 29035, slip op. (2009) (10) (“On October 23, 2007, Governor Linda Lingle issued a Proclamation convening both houses of the legislature in special session to consider legislation on two issues, including ‘legislation to allow the immediate commencement of operation of a large capacity inter-island ferry.’”).
9Sierra Club v. State of Hawaii Dep’t of Trans. II 29035, slip op. (2009) (10) (“On October 23, 2007, Governor Linda Lingle issued a Proclamation convening both houses of the legislature in special session to consider legislation on two issues, including ‘legislation to allow the immediate commencement of operation of a large capacity inter-island ferry.’”).
10Sierra Club v. State of Hawaii Dep’t of Trans. II 29035, slip op. (2009) (10-11) (“On November 2, 2007, ‘A Bill for An Act Relating to Transportation’ was signed by the governor and became Act 2. 2d Spec. Sess. 2007 Haw. Sess. Laws Act 2, §§ 1-18 at 5-21.”).
11Sierra Club v. State of Hawaii Dep’t of Trans. II 29035, slip op. (2009) (13-14) (“On November 5, 2007, Superferry and DOT moved to dissolve the injunction and vacate the order voiding the operating agreement between DOT and Superferry.”).
12Sierra Club v. State of Hawaii Dep’t of Trans. II 29035, slip op. (2009) (15) (“On November 14, 2007, the circuit court granted DOT’s and Superferry’s motions to dissolve the injunction and vacate the order voiding the operating agreement.”).
13Sierra Club v. State of Hawaii Dep’t of Trans. II 29035, slip op. (2009) (19).
14Sierra Club v. State of Hawaii Dep’t of Trans. II 29035, slip op. (2009) (3).
15Hawaii Superferry Goes Bankrupt, AP, New York Times (http://www.nytimes.com/2009/06/01/us/01ferry.html) (“The Hawaii Superferry is filing for bankruptcy, two months after a State Supreme Court ruling effectively shut it down.”).