by Michael A. Lilly, Ning Lilly & Jones (Hawaii Attorney General 1981-85)

Reprinted courtesy of www.buildingindustryhawaii.com

Who is responsible for the death of a Hawaii treasure – the Superferry? I will answer that question at the end of this article, but first let me explain why the Superferry sailed away from Hawaii and how easy it would have been to save it.

Hawaii’s Environmental Protection Act requires an Environmental Impact Statement (EIS) for major government actions that may have a significant effect on the environment. The state Department of Transportation correctly believed that the minor work on a Maui pier to accommodate the Superferry was so insignificant it did not require an EIS.

However, the state was blindsided by the Hawaii Supreme Court’s Aug. 31, 2007 decision extending the EIS requirements to consideration of "secondary" or remote impacts. Because the trivial pier work enabled the purely private Superferry to transit between islands, the court required the state to prepare an EIS regarding its indirect impacts on the environment. Never mind that thousands of other boats and ships also transit and have transited those straits since ancient times. No one believed the law went so far. Former state Sen. John Carroll, who helped write the law in the early 1970s, told me it was never the intent to so read the EIS requirements.

Last year, instead of enacting a law stating that the Supreme Court was wrong, the Legislature adopted special legislation exempting the Superferry pending completion of an environmental impact statement. The Supreme Court’s recent decision correctly struck down that exemption as violating the Hawaii constitutional prohibition against legislative special treatment for special interests.

The governor and Legislature were then handed a second opportunity to make the law pono by saying what everyone believed. The Legislature could enact simple language, such as the following which I recommended to the legislative leadership in March 2009, making clear that our environmental laws do not extend to "secondary" impacts:

"Significant effect" does not include or require consideration of “secondary impacts” on the environment that may result from government action. This latter provision is retroactive to enactment of this chapter.

By doing so, the law would state what everyone always believed it meant and the Superferry would have been allowed to continue providing essential transportation to Hawaii's citizens and competition to interisland airlines.

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.

LINK: to original publication of article