Guerrilla warfare tactics demean Superferry case
Since the industrial revolution, there has been a growing tension between economic development and the environment. That tension has seen pendular extremes, from utter disregard for the environment by industry to cults of anti-development protesters. The Hawaii Superferry protesters and their lawyers are beginning to look like the latter.
Anyone who read last week's Supreme Court decision might have been surprised to discover that it doesn't concern the ferry's possible environmental impact. The decision does not find or even suggest that there might be grounds for stopping the Superferry operations for environmental considerations. It doesn't even discuss that issue. The ruling concerns only the Department of Transportation's 2004 planned improvements to Kahalui harbor, which would accommodate the Superferry.
Now, the Maui wharf improvements are finished and the sky has not fallen. Please, someone explain to me the purpose of now requiring the DOT to issue a prospective environmental assessment for a proposed wharf improvement that is already in place. Yes, the DOT can work through most transportation issues, but I don't think it has a time machine to get it back to 2004 and to handle this one.
In their lawsuit, the protesters' lawyers complained about proposed wharf improvements, but wisely chose not make an upfront environmental challenge to the Superferry. This is because it would surely lose and, if the compliant were made today, it would still lose.
Cruise ships dock in Hawaii harbors or constantly shuttle passengers between their ships and the pier. Young Bros. barges and scores of freighters are constantly docking in Kahalui and other Hawaii harbors. Kona and Lahaina anchorages are alive with scores of pleasure craft. Not one of these enterprises has required an environmental impact statement.
Faced with the Superferry proponents' superior position based on reason and common sense, the protesters chose a guerrilla warfare tactic: cripple the Superferry by attacking its infrastructure and its docking facilities, and win at any cost. When I went to law school, I was never tutored to "win at any cost" because the cost might be my integrity.
The Superferry operators are playing by the rules; the protesters are playing with the rules. In 2005, when the Maui circuit court ruled that the DOT was not required to produce an environmental assessment, the ferry operator had a right to rely on that ruling.
In 2005, after the Maui court dismissed their case, if the protesters had any basis for arguing that there would be irreparable injury to the environment, they had options they didn't take. They could have sought an expedited Supreme Court hearing. The issue then could have been resolved before the wharf improvements were started and before the Superferry operator spent millions of dollars preparing for operations.
Now the protesters' supposed good fortune has given them a taste for blood. They now want to parlay this procedural error to shut down the Superferry. It's not hard to see that an injunction might be the death blow to this service geared for local people. That would be a manifest injustice. The protesters' answer to this seems to be, "So what." Let's hope we don't hear an "Amen" from the judiciary.
Joe Gedan, a regular contributor to the Star-Bulletin, is a retired U.S. magistrate judge. He lives in Honolulu.