Process, process, process.
That’s the briefest summary I can muster up of the Hawaii Supreme Court’s 113 page decision yesterday which found the Legislature’s Superferry rescue unconstitutional because it carved out a very narrow law applying to that single company.
Lingle and company can’t blame partisan politics on this one since the opinion was crafted by Associate Justice Jim Duffy, who Lingle appointed to the court in 2003.
The Lingle administration and the Legislature fumbled this issue from the beginning by forgetting their basic procedural checklist and getting caught up in a high-stakes speculative corporate gamble by Superferry investors. Despite DOT staff advising that they needed to begin with an environmental impact study, the state instead tried an end run at the Superferry’s behest.
The court also upheld the circuit court’s award of legal fees and costs incurred by the Sierra Club to be paid jointly by the State and Superferry.
Congratulations to Maui attorney Isaac Hall, who carried this case on his back against the collective legal talents of the state administration, the legislature, and the company while operating out of a tiny law office. A career capstone for him to be proud of, for sure!
I defer to Joan Conrow’s assessment in her KauaiEclectic blog:
Indeed, the Justices wrote in their conclusion:
That our Constitution prohibits laws which provide disparate treatment inended to favor a specific individual, class or entity or to discriinate against a specific individual, class, or entity is a fundamental principle of the democratic nature of our government: equal rights and treatment for all persons under the law.
I’m sure we’ll hear the usual cries and moans about how this sends out a message that Hawaii is a bad place to do business. But what it really sends out is the message that it’s a bad place to pull a fast one, conduct shady business and work the political process to get special favors for your business.
And it seems to me that’s a good message to send to the world.
I also have to wonder whether this ruling will have an impact on Sen. Hanabusa, who got the credit for pushing the special legislation.
And what about Gov. Head-in-the-Sand Lingle, who continues to say that her administration did everything correctly despite this series of huge legal blunders.
Here’s the Guv as quoted by the Advertiser:
“I’m sure there are all sorts of political opinions out there,” she told reporters. “But we know from the beginning we were correct and accurate, did the right thing, and we’ve been able to provide a great service for the people of Maui and O’ahu, one that they’ve come to appreciate and in some cases to depend upon, especially in the case of small businesses.”
I guess the idea is just snap your fingers, close your eyes, and the bad stuff magically goes away!
She seems to be taking the same approach to budget planning.
On to other things.
Aloha to the Seattle Post-Intelligencer, which prints its last edition today.
And a friend in Minnesota recommended this essay, which she describes as “a very thoughtful consideration about the differences and connections between newspapers, journalism, and the internet.”
And I just ran into this image of Leo at his prime in the role of the character “Thunderstep” in an online game. Just scroll down to his photo, which appears just above the Thunderstep annotation. His character is described this way:
“Very wise and noble. Thunderstep is feared by most cats beacause of his very tall muscular body. Yet, this tom is quite sweet and kind.”
And so he was.
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There was such a dearth of integrity throughout this whole process, I’m so glad for the decision. And although I do think that Sen Hanabusa was attempting to act in the best interest of the state’s people (at least I’d like to believe), I wish she had chosen a different path. And let’s not forget the stellar marketing campaign done by SF. $29 fares. If that doesn’t put a smile on some folks face, I don’t know what will. Plus where was the local media during all this? Did I miss all the in-depth reports on the necessity of an epa review? How undercutting this requirement may be serving the interest of Lingle’s campaign financers? And where were the interviews with legal experts on how the passing of act 2 would be unconstitutional? The media failed the people. They represented protesters as “crazed” and “rude” while ignoring the legitimacy of their claims. Where was the courage during reporting? Now there’s talk of legal action from Superferry. Just what Hawai’i needs during a recession, another lawsuit.
What a farce the environmental review process has become! The original purpose was to insure that basic environmental information was in front of decision makers before approval was given. Does anybody actually believe that when this EIS is accepted that the quality of information available to decision makers will be substantially different from what was know over a year ago! All this has done is pay Isaac Hall’s bills and probably driven away a useful service that benefitted mostly local residents. How about the folks who now are having to submit Environmental Assessments so that they can hook up to utilities? Where is your famed investigative reporting about the tremenduous backlog of cases at OEQC because State agencies and Neighbor Island counties refuse to issue exemptions that used to be routine?
Lopaka, I don’t know enough about the practical application of the EIS law to understand the extent to which it may delay or prevent activities/projects that are not environmentally harmful or whose benfits outweigh the environmental harm caused. I have to assume that there may be some activities/projects in a gray area to which the EIS should not apply (there has been a bill in recent sessions to exempt running utilities under existing roadways or within the roadway right of way).
But it was clear from the beginning that the SupreFerry fell within the law and is different not only in degree but in kind from the type of activities to which you refer. If the law needs to be improved, improve it. If OEQC needs to be better funded or overhhauled, then do it. But the example set by the Lingle administration in ignoring the law in this instance sets a bad precedent not just for protection of the environment but for the integrity of the process by which a democratic society governs itself.
What Lingle did here was like what George Bush did for eight years: ignore the law, ignore the separation of powers, ignore the constitution itself. We finally got rid of King George. Now the Hawaii Supreme Court has stripped away Queen Linda’s cloak of invincibility. The empress no longer has any clothes. The time will not come soon enough that she is sent packing, naked, into the cold, dark, night.
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!!
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).
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.