News Report

Supreme Court to decide constitutionality of lawmakers’ Superferry actions

in ʻAina

Smiles of anticipation adorned faces of Sierra Club members at Hawai'i's highest court yesterday morning, prior to Hawai'i's Supreme Court Justices entering the courtroom.

The environmental activists had waited a year since the Hawai'i Superferry bill, known as Act 2, was signed into law by Gov. Linda Lingle in November 2007.

With the bill, lawmakers were able to meet the Superferry's operation deadline without going through the required environmental review process. A Hawai'i Supreme Court order in August 2007 had called for an environmental assessment (EA). Two months later in October, the Circuit Court ordered an injunction that prevented the Superferry from operating until the EA was complete. The Circuit Court found an injunction to be in the public interest because it was possible that Superferry operations could cause irreparable harm to multiple environmental resources.

In a move that also dodged a potentially lengthy appeals process, the Legislature and the governor passed Act 2 to bypass the injunction, which specifically would have prohibited the State Department of Transportation (DOT) from upgrading Kahului Harbor on Maui to allow the Superferry to operate.

Yesterday, Hawai'i Supreme Court justices heard arguments from the side of the Sierra Club and the side of the state and Superferry before adjourning to make a decision at an unspecified date.

Sierra Club questions legality of Act 2

Sierra Club attorney Isaac Hall said that the state had robbed the public of the appeals process with the passing of Act 2.

"We had hoped the case would be over, and the DOT and Superferry would do an EA," Mr. Hall said. "Superferry could have appealed [in court]. But instead they appealed, and I use that word lightly, to the Legislature."

At yesterday's hearing, Mr. Hall argued that litigation following the passing of Act 2 had resulted in the Circuit Court wrongly granting the DOT and Superferry's motions to dissolve the injunction, by not ruling that Act 2 was unconstitutional, and by entering a final judgment dismissing Sierra Club's complaint as moot.

Mr. Hall cited Article 1, Section 21 of the State Constitution, which states that "the power of the State to act in the general welfare shall never be impaired by the making of any irrevocable grant of special privileges or immunities." The Constitution prevents lawmakers from enacting laws for one entity or business.

"Superferry could have appealed [in court]," Sierra Club attorney Isaac Hall said. "But instead they appealed, and I use that word lightly, to the Legislature."

The Sierra Club's main argument is that Act 2 is unconstitutional special legislation because it was "conceived, cut, and tailored" to apply to Superferry alone but written to appear as a general law.

Act 2, titled "The Superferry Bill" in legislation, authorized Superferry to use 5.1 acres of state lands at Kahului Harbor that were the subject of the operating agreement voided by the courts.

Mr. Hall said that the bill was largely known to be intended for the Superferry alone and that the bill's language is written in such a way that no other ferry service is applicable. Act 2 states, "Any agreements between the department of transportation or the state and a large capacity ferry vessel company previously entered into for the purpose of facilitating the provision of service by a large capacity ferry vessel may be used to effectuate the provisions of this Act."

Mr. Hall also cited Hawai'i Revised Statutes 601-5, which states that the governor shall have no power to interfere with, alter, or overrule any order, writ, judgment, or decision of any court, judge, or other judicial officer.

Sierra Club must prove to the justices that the decisions made in 2007 by the Hawai'i Supreme Court and the Circuit Court to not allow Superferry to operate until an EA was completed were final judgments interfered with by the governor.

The state says lawmakers acted on behalf of all Hawai'i citizens

Attorney for the state, Lisa Ginoza, said Act 2 balances the public's need for an inter-island ferry service with environmental concerns. "The Legislature speaks on behalf of all of the people of the state," she told the Supreme Court.

The state argues that Act 2 was not intended for Superferry operations alone and that future operations would also benefit.

"It's about this alternative, innovative mode of transportation, that's why the State acted." Ms. Ginoza said.

Justice Paula Nakayama asked the state attorney how many businesses apply to Act 2. Ms. Ginoza replied that "there is nothing in the records to address that."

Justice Simeon Acoba, Jr. then asked Ms. Ginoza if there were any other entities that fit the description "high-speed large-capacity ferries" as described in Act 2, to which she replied, "Not at this moment that I am aware of."

Ms. Ginoza said Act 2 contemplates that there could be other ferries fitting that description that would come to Hawai'i in the future.

"It's about this alternative, innovative mode of transportation, that's why the State acted." Ms. Ginoza said. "If there is a reasonable public interest, then it is not a special interest."

She explained that Act 2 calls for an environmental review because of harbor improvements, not just the Superferry.

State Auditor finds flaws in environmental review system

Just a few days prior to the Supreme Court Hearing, the State Auditor released a report on the State Administration's actions exempting Superferry harbor improvements from Hawai'i environmental laws. The report described flaws in the State's environmental laws and difficulties in working with the Attorney General's office.

The reports stated, "Our audit work was delayed by access issues, including access to public information and allegedly private, attorney-client, and executive privileged information. The attorney general took an active role in reviewing requests documents and interceding in our audit interviews. Moreover, Hawai'i Superferry, Inc. declined to participate in our audit unless we amended our standard audit procedures."

"Our audit work was delayed by access issues, including access to public information and allegedly private, attorney-client, and executive privileged information."

The State Auditor attributed the DOT's ability to bypass an environmental review because of flawed Environmental Impact Statement (EIS) laws. The report recommends the following:

1. The Environmental Council amend the EIS rules to require agencies to document and file records of their findings that have been determined to be exempt; review, update, and submit their exemption lists every five years; and consult with the Office of environmental Quality Control (OEQC) director and outside agencies and individuals prior to reaching a decision of an exemption determination.

2. The OEQC establish guidelines and processes to ensure that all of the steps required to protect the environment have been properly addressed before an agency declares an exemption determination, that the Environmental Council is notified when the director of the OEQC receives a request for an opinion or consultation from an agency, and that exemption determination documents is maintained and available for public review.

3. The DOT Harbors Division modify its record-keeping process to facilitate public review of exemption determinations.

The report also stated that there is a lack of accountability in the environmental review process because EIS law in Hawai'i does not name an enforcement agency. The State Auditor also said that it is problematic that the public's involvement in the process is only through litigation.

The Supreme Court's decision on the constitutionality of Act 2 is more than an argument over legal semantics. The problems highlighted by the State Auditor represent what has culminated in the state's struggle with being held accountable to its own laws and with being open to the public. As Hawai'i's justices reconvene to make their decision, the public will be looking to see just how much has been done on their behalf. If government actions are truly in the best interest of the public, then records and information part of the environmental review process will be made more easily accessible and transparent.

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