Ending Superferry service would be a blow to Hawaii


POSTED: Wednesday, March 18, 2009

Few would disagree that the Hawaii Superferry provided a desirable interisland service for residents, tourists and businesses. Few would disagree that compliance with the state constitution is necessary and that laws should be constructed accordingly. Nor would anyone dispute the right of citizens to demand that government leaders abide by the law.

So no one should dispute that Gov. Linda Lingle and administration officials — contrary to staff recommendations — made a mistake in initially exempting the ferry from environmental review. Nor can the defective legislation that lawmakers and Lingle approved be seen as anything other than a compounding of the error.

As a result, the notion of an unfriendly business climate in Hawaii gains credibility; an enterprise with nearly 300 employees has been shut down indefinitely, maybe permanently; travelers, farmers and others who have come to rely on the service are left without service; and the state faces a possible loss of millions of dollars in ferry revenue and further litigation.

This ruinous situation that began four years ago with the exemption came to a head with a Hawaii Supreme Court ruling that the law known as Act 2 is unconstitutional because it favors a specific entity, violating “;a fundamental principle of the democratic nature of our government: equal rights and treatment for all persons under the law.”;

The court found that although the legislation appeared to encompass a generic “;large capacity ferry vessel company,”; its effects were “;illusory”; because specifics in the law could apply only to the Superferry.

Further, the time frame of 21 months for applying Act 2 realistically limited the benefits to the Superferry because entry by another entity would have been impossible when building a similar vessel alone would have taken three years, as did the Superferry.

How the state and the company will proceed is unclear. The unconstitutional legislation allowed a less stringent environmental review than long-standing law requires and that evaluation has yet to be completed.

Though Lingle — who cannot seem to acknowledge a bad decision — says she might seek an appeal to the U.S. Supreme Court, Attorney General Mark Bennett does not see that as an option because no federal issues are involved. The state could ask the Hawaii court to reconsider, but its unanimous decision makes that unlikely.

Lawmakers could take another swing at helping the ferry company, but whether they can formulate timely legislation that will stand constitutionally is doubtful, given the overwhelming financial problems before them this session.

Whether the plaintiff groups would settle is also in question since their suits sought only one thing — compliance with environmental law.

There is no clear way out of this disastrous situation, but it should not end in dismantling a valuable service.