Superferry ruling puts state in unchartered legal waters
The Hawaii Supreme Court's decision to require an environmental assessment for minor harbor improvements made for the Hawaii Superferry at state harbors is a dramatic change to the legal landscape and long-held state policy.
It suggests that the evaluation of any transportation improvement must include the impacts of users -- be they boats, airplanes or automobiles. This far surpasses what was previously required under the environmental statute and prior cases. Based on those prior cases, the Second Circuit Court's decision in 2005 supported the state Department of Transportation's policy of evaluating proposed improvements.
Because transportation improvements are continually ongoing and need to be done in a timely manner, the Hawaii Revised Statutes Chapter 343 Environmental Law requires review only in certain cases. These include actions that are "significant" or not compatible with the intended use of the facility.
The state's acquisition of barges, installation of boarding ramps and minimal improvements to piers to accommodate a commercial ferry were determined to fall within the intended use of our harbors and consisted of minimal improvements and therefore, in our opinion, qualified for an exemption. Maui Circuit Court Judge Joseph Cardoza agreed. Under the statute, the exemption process is expressly left to the Office of Environmental Quality Control to determine the types of exemptions that are allowed. This was intended to allow for more certainty and efficiency of the process. The Supreme Court's ruling unravels this process and creates much more uncertainty.
It is unclear how the Hawaii Supreme Court's new standard will apply to facilities and operations across the state.
No environmental assessment was required or requested when Pasha Transport Lines introduced vehicle delivery service or new cruise ships commenced interisland service. Nor was there a requirement to impose similar scrutiny to Matson Navigation when it introduced larger vessels or a mobile crane at the Kahului Harbor. The Young Bros. interisland barge company has added larger barges, including one with a 500-car capacity, but an environmental review was not required, even when the state made necessary harbor improvements to provide more operating area for the company's activities.
Airports and airlines, which transport significantly more passengers than the Hawaii Superferry, also have not been held subject to an environmental review as a condition of beginning or expanding service, except for situations where they construct new or expand existing facilities.
It is unfortunate that our decisions, which are consistent with previous state practices, are being inaccurately characterized as illegal by some, when the DOT proceeded on the basis of legal precedent and the Second Circuit Court's ruling. We have always clearly communicated our laws and rules to those seeking to do business in Hawaii. Now, with the Supreme Court opinion, the state is entering uncharted legal waters, where all types of transportation improvements now apparently must undergo extensive scrutiny to include secondary impacts associated with the operation of the vessel, aircraft and its cargo or passenger load. Will the DOT be required to conduct environmental reviews to evaluate the secondary impact of every type of vehicle that could or would use our roadways, for every minor improvement or routine repair project?
Hawaii Superferry officials have been sensitive to environmental concerns and adopted numerous measures that no other shipping company or cruise line employs. These measures have been undertaken voluntarily in response to comments and expressions of concern that have been brought before them.
The state Department of Agriculture has assessed the ferry's operations and worked with the company to develop acceptable and appropriate inspection procedures. Yet opponents also reject these measures, even if they far surpass any that are practiced by any other form of interisland transportation.
It has been argued that the DOT must consider, in our harbor development review, marine mammals, primarily whales. This standard extends beyond the boundaries of our jurisdiction. It also is noteworthy that all vessels in Hawaii waters can potentially interact with marine mammals and yet we have not had to consider the effects of vessel operations until now.
The argument has been made that the Superferry is too fast to avoid whales; critics ignore the ferry's high maneuverability and that both the route and speed will be adjusted during whale season. Other operators, such as whale watch cruises, have actually experienced whale strikes because they deliberately seek to operate close to them, yet they have not been asked to undergo environmental review. It seems the Hawaii Superferry is being held to a higher standard.
The serious issue we face today is not whether environmental laws are unnecessary or wrong, but that their selective use to oppose certain businesses and operations by those who don't want them is contrary to what these laws were established to address.
Barry Fukunaga is director of the state Department of Transportation.