Comments on: Tuesday…The Superferry decision, Aloha to another major metro newspaper, and Mr. Leo in character http://ilind.net/2009/03/17/tuesdaythe-superferry-decision-aloha-to-another-major-metro-newspaper-and-mr-leo-in-character/ Ian Lind • Online daily from Kaaawa, Hawaii Tue, 14 Feb 2012 05:21:33 +0000 hourly 1 http://wordpress.org/?v=3.3.1 By: Lopaka943 http://ilind.net/2009/03/17/tuesdaythe-superferry-decision-aloha-to-another-major-metro-newspaper-and-mr-leo-in-character/comment-page-1/#comment-1500 Lopaka943 Fri, 20 Mar 2009 02:58:34 +0000 http://ilind.net/?p=2090#comment-1500 They did not receive an exemption "illegally". They followed legal processes, entered into agreements with the State, and complied with State processes which found that no EIS was needed. The Supreme Court ruled that the DOT erred in issuing an exemption, ignoring the precedents set by many previous harbor projects that had received exemptions. The DOT Director has a list of projects that can be exempted from EA/EIS reviews. It is a judgment call as to whether a project can be exempted. Administrators often receive conflicting advice on controversial decisions. Yes, some of the staff felt that an EA/EIS process should be followed. Often we make that recommendation, precisely for the reason, that in hindsight, DOT should have. If you do the process, then you don't expose yourself to a lawsuit, and the chance that the Hawaii Supreme Court will take it as an opportunity to expand the scope of the EIS law. At the core of the issue for me is the fact that none of this concern about the EIS has actually resulted in any significant improvement in knowledge about the environmental impacts of the Superferry. If the EIS process is completed with the Draft EIS being refined to respond to all of the comments received and the EIS is accepted, I don't believe that we will know anything significantly different than what we knew when DOT approved operations of the Superferry. The concerns raised by Mr. Hall and his colleagues were known, the basic science and conditions were known, and the proposed mitigations for addressing the concerns had been evaluated and approved. But by forcing a judicial showdown and a substitution of judicial judgment for legislative and executive agency judgment, the plaintiffs have probably succeeded in killing the Superferry which is what they really wanted. They fervently believe the Superferry will adversely affect them, and all the scientific information or professional judgments are unlikely to sway them, whether they were delivered in administrative proceedings or as part of the EIS. Even if the EIS is accepted, the next stage of the legal game is to sue because you feel that the EIS is not adequate to see if you can get a judge to make the Department do more studies. Delay, delay, delay; study, study, study. Eventually the businessman runs out of money and goes away. This is not what we intended when we passed the EA/EIS law. But it is what we've got. They did not receive an exemption “illegally”. They followed legal processes, entered into agreements with the State, and complied with State processes which found that no EIS was needed.

The Supreme Court ruled that the DOT erred in issuing an exemption, ignoring the precedents set by many previous harbor projects that had received exemptions.

The DOT Director has a list of projects that can be exempted from EA/EIS reviews. It is a judgment call as to whether a project can be exempted. Administrators often receive conflicting advice on controversial decisions.

Yes, some of the staff felt that an EA/EIS process should be followed. Often we make that recommendation, precisely for the reason, that in hindsight, DOT should have. If you do the process, then you don’t expose yourself to a lawsuit, and the chance that the Hawaii Supreme Court will take it as an opportunity to expand the scope of the EIS law.

At the core of the issue for me is the fact that none of this concern about the EIS has actually resulted in any significant improvement in knowledge about the environmental impacts of the Superferry. If the EIS process is completed with the Draft EIS being refined to respond to all of the comments received and the EIS is accepted, I don’t believe that we will know anything significantly different than what we knew when DOT approved operations of the Superferry. The concerns raised by Mr. Hall and his colleagues were known, the basic science and conditions were known, and the proposed mitigations for addressing the concerns had been evaluated and approved. But by forcing a judicial showdown and a substitution of judicial judgment for legislative and executive agency judgment, the plaintiffs have probably succeeded in killing the Superferry which is what they really wanted. They fervently believe the Superferry will adversely affect them, and all the scientific information or professional judgments are unlikely to sway them, whether they were delivered in administrative proceedings or as part of the EIS. Even if the EIS is accepted, the next stage of the legal game is to sue because you feel that the EIS is not adequate to see if you can get a judge to make the Department do more studies. Delay, delay, delay; study, study, study. Eventually the businessman runs out of money and goes away. This is not what we intended when we passed the EA/EIS law. But it is what we’ve got.

]]> By: ohiaforest3400 http://ilind.net/2009/03/17/tuesdaythe-superferry-decision-aloha-to-another-major-metro-newspaper-and-mr-leo-in-character/comment-page-1/#comment-1498 ohiaforest3400 Wed, 18 Mar 2009 23:18:44 +0000 http://ilind.net/?p=2090#comment-1498 Lopaka, I'll have to defer to your opinion that, as a matter of policy, the EA/EIS law has been increasingly applied, or more expansivcely applied, in recent years because of court decisions and that at least some of those decisions were wrong. My point is that, at the time SuperFerry came to the administration with its plan, it was clear that an EA/EIS was required UNDER THE LAW AS IT WAS BEING INTERPRETED AT THAT TIME, RIGHTLY OR WRONGLY. For the administration to ignore the advice of its own staff, if not their attorneys (who they refuse to unmuzzle), was indifferent, arrogant, even reckless and having done so has needlessly cost taxpayers and investors milions of dollars and SuperFerry employees uncertainty, disruption, and lost opportunity. Not to mention that the SuperFerry business model was never viable (even without competition from price-fixing go! and with "reasonable" fuel prices, revenues would never have matched expenses) and now we have given them a perfect excuse to say the failure of the business is the fault of the environmentalists, the courts, etc., instead of being a bad business decision underwritten by taxpayer-guaranteed Federal Martime Administration loans. BOTTOM LINE: the case has turned out exactly as predicted and it all could have been avoided (whether SuperFerry wouldn't have come without the EA exemption or has now left because they got it illegally, the result is the same: they're going, going, gone). Lopaka, I’ll have to defer to your opinion that, as a matter of policy, the EA/EIS law has been increasingly applied, or more expansivcely applied, in recent years because of court decisions and that at least some of those decisions were wrong. My point is that, at the time SuperFerry came to the administration with its plan, it was clear that an EA/EIS was required UNDER THE LAW AS IT WAS BEING INTERPRETED AT THAT TIME, RIGHTLY OR WRONGLY. For the administration to ignore the advice of its own staff, if not their attorneys (who they refuse to unmuzzle), was indifferent, arrogant, even reckless and having done so has needlessly cost taxpayers and investors milions of dollars and SuperFerry employees uncertainty, disruption, and lost opportunity. Not to mention that the SuperFerry business model was never viable (even without competition from price-fixing go! and with “reasonable” fuel prices, revenues would never have matched expenses) and now we have given them a perfect excuse to say the failure of the business is the fault of the environmentalists, the courts, etc., instead of being a bad business decision underwritten by taxpayer-guaranteed Federal Martime Administration loans. BOTTOM LINE: the case has turned out exactly as predicted and it all could have been avoided (whether SuperFerry wouldn’t have come without the EA exemption or has now left because they got it illegally, the result is the same: they’re going, going, gone).

]]> By: Lopaka943 http://ilind.net/2009/03/17/tuesdaythe-superferry-decision-aloha-to-another-major-metro-newspaper-and-mr-leo-in-character/comment-page-1/#comment-1497 Lopaka943 Wed, 18 Mar 2009 21:52:39 +0000 http://ilind.net/?p=2090#comment-1497 Ohia, we'll have to agree to disagree about how clearly the Superferry trigger required an EIS. What has been happening in recent years is that the Hawaii Supreme Court has been overturning long standing practices that allowed agencies to exempt manini projects from triggering expensive and time consuming EA and EIS requirements. My understanding is that the trigger in this case was the Harbor Division improvement of a dock to allow the Ferry to land its cargo and passengers. A dock improvement is a manini project for a harbor and other dock improvements have been exempted from the EA/EIS process. We have already seen that the Draft EIS has not materially added to the information available to the State when they approved going ahead with the Superferry, and the Final EIS is not likely to add anything substantial on those issues. So what have we gained by making the State and the Superferry go through this process? We have cost them lots of money, most of which went to consultants and lawyers, for very little additional useful information to answer the question of whether the Superferry should be allowed to operate or what mitigations would minimize the risk of hitting a whale, introducing alien species, or causing cultural damages. In addition, State and Neighbor Island officials are refusing to exempt manini projects from EA/EIS requirements, causing costly delays for hundreds of projects. What a misuse of the EA/EIS process!! Ohia, we’ll have to agree to disagree about how clearly the Superferry trigger required an EIS. What has been happening in recent years is that the Hawaii Supreme Court has been overturning long standing practices that allowed agencies to exempt manini projects from triggering expensive and time consuming EA and EIS requirements. My understanding is that the trigger in this case was the Harbor Division improvement of a dock to allow the Ferry to land its cargo and passengers. A dock improvement is a manini project for a harbor and other dock improvements have been exempted from the EA/EIS process. We have already seen that the Draft EIS has not materially added to the information available to the State when they approved going ahead with the Superferry, and the Final EIS is not likely to add anything substantial on those issues. So what have we gained by making the State and the Superferry go through this process? We have cost them lots of money, most of which went to consultants and lawyers, for very little additional useful information to answer the question of whether the Superferry should be allowed to operate or what mitigations would minimize the risk of hitting a whale, introducing alien species, or causing cultural damages. In addition, State and Neighbor Island officials are refusing to exempt manini projects from EA/EIS requirements, causing costly delays for hundreds of projects. What a misuse of the EA/EIS process!!

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