Lawmakers should fix mistake that led to Superferry fiasco
In a few days a Maui court will inform us of the fate of the Superferry. We can expect three possible rulings from the bench, each with its own reactions from various parts of our communities and islands. Though the court does not make rulings on the basis of politics, and will rule in a fully legal and technical manner, court rulings in Hawaii have a tendency to have political flavors mixed in and around them, and that is why three speculative scenarios logically follow.
» First, the court could rule that the Superferry is sunk -- and will not be allowed to sail without the environmental assessment first being fully completed. This would likely shut down the operation in Hawaii and the harbor improvements would probably end up in court to decide who is going to pay for them. The mainland would make fun of us all over again, and the damage to our business image and investment climate would sour for years to come. This would be a great victory for all who filed numerous law suits to stop the Superferry.
» A second possible scenario is that the court rules that the Superferry is free to sail while the EA is being conducted. This would probably make the majority of the people in Hawaii happy -- though inflame another, smaller group that is more volatile and vocal. For these reasons, I don't believe this is the likely ruling of the court.
» A third option that most of us in the Legislature are expecting is that the court will provide neither a clean "stop" or "go," but a "conditional proceed with caution" ruling. This yellow flashing light for the Superferry to set sail conditionally could include such things as changing sea lanes to avoid whales, decreasing the ferry's speed, washing the cars' undercarriages to eliminate invasive species and so on. This is a compromise that should please both opponents and proponents of the issue, and could result in there being no need to call for a special legislative session. Because of these benefits to all concerned, it is the likely outcome of the current legal battles and for the greater good.
However, if the Maui court or subsequent rulings or injunctions take all the wind out of the sails of the Superferry by creating environmental requirements or conditions so stringent they could cause bankruptcy, the Legislature will likely act quickly to support the Superferry and tweak Chapter 343 with more clarity. Chapter 343 is what got us into this trouble in the first place.
As a legislative body we got the Superferry in trouble way back in 1993, not just a few weeks ago by the protesters or environmentalists or even the judges on Maui and Kauai or even the Hawaii Supreme Court. The legal battle started in 1993 with the passage of Chapter 343, which outlines the procedures to review environmental effects and protect our overall environment.
The unfortunate thing is that the language used in Hawaii Revised Statute 343 was written too vaguely and did not take into consideration the secondary effects on the environment that the state Supreme Court pointed out were so clearly needed in the case of the Superferry. In the absence of clear "legislative intent" in HRS 343, the justices had to interpret the law where the Legislature left off. The process of exemption was not clear, nor did it spell out what projects should or could be exempt if they had no significant environmental impact. Nothing suggested nautical speed to be checked for the safety of whales, nor safeguards for invasive species spreading throughout our islands. It was simply too silent in too many places.
The Supreme Court justices had to step in and become legislators, and that is exactly what they should have done. Now, however, is the time for we legislators to assume our rightful positions to fix the law while the justices return to their benches and prepare for the next onslaught of cases under the flawed measure. We have strong environmental advocates in the Legislature as well as a balanced approach to sound business for the state.
Short of a fix in 343, the state could be in big trouble. Without any clarification by the Legislature, we can expect even routine road maintenance or construction projects, or large public events such as the Honolulu Marathon, to be legally challengeable because each has its own serious secondary impacts on our traffic and socio-economic environment, not just our physical environment.
Clearly, the Legislature has to show where legislative intent begins and ends by clearly drafting amendments to Chapter 343. We made the mess, and we can clean it up.
Gene Ward, a Republican, represents the Hawaii Kai-Kalama Valley area in the state House of Representatives.