Superferry: What the Hawai'i Supreme Court really said

Almost everybody has missed key points in the Hawai'i Supreme Court's Superferry ruling.

Not surprising, perhaps. The ruling is 104 pages long. A small book. Who had time to read it on deadline?

Off deadline, we spent some time with it.

The Superferry is a business that proposes to run high-speed passenger-and-cargo vessels between Hawai'i ports.

The Hawai'i Supreme Court shocked the business, environmental and government communities by ruling on an appeal that the state Department of Transportation (DOT) needs to conduct environmental assessment (EA) for its harbor improvements that benefit the Hawai's Superferry, as well as on some of the direct impacts of the Superferry operation itself.

Before a lower court could issue rulings giving force to the Supreme Court decision, the ferry folks decided to start operating.

Kaua'i residents shocked Superferry passengers, the Coast Guard, the state and to some degree the nation when dozens of them leaped into the ocean to form a human blockade preventing its access to Nawiliwili, the primary harbor on Kaua'i.

It made national news.

Many of the protestors argued with the Coast Guard personnel trying to haul them aboard or shove them out of the way. They weren't the lawbreakers, they said, the ferry was.

The Hawai'i Supreme Court ruling is complicated, but it seems clear that the ferry wasn't actually the lawbreaker.

The lawbreaker was the state Department of Transportation, which owns the harbor in which the protesters were swimming.

But it's also clear that the ferry was pretty audacious in deciding to begin running passengers into the seriously murky legal waters created by the court.

Here are some of the results of a reading of the court ruling, which at this writing (Aug. 3, 2007) is being considered by the 2nd Circuit Court on Maui.

A warning: This is going to get a little technical, but not nearly as technical as the actual ruling, which is available on the web from the August 2007 files at: www.courts.state.hi.us/page_server/LegalReferences/73DFB8859867A628EAE7AB3DC5.html.

*** One of the first issues is one that will benefit citizen pro-environment movements for years to come. (We'll get to the Superferry stuff, but this piece of the case may be more important, ultimately, than that.)

The Maui Circuit Court had ruled that the Maui Sierra Club, Maui Tomorrow and the Kahului Harbor Coalition lacked standing—meaning they couldn't claim relief because they weren't sufficiently affected by the DOT's failure to do an EA.

The environmental groups claimed four injuries: threats by the Superferry to endangered marine species; the threat of introducing alien species to the island; limitations due to the Superferry's operation to recreational uses in harbors; and traffic problems. In short, whales, coqui frogs and miconia, canoes and surfers, and finally, traffic jams.

The Supreme Court ruled that they did have a right to sue, that a band of citizens has an interest in whether the state is doing right by the environment—a right sufficient to go take to court.

“If these Appellants do not have standing to bring this claim, it is hard to imagine who, if anyone, would,” the court said.

The Supreme Court said that the right to sue in environmental cases is derived in part directly from the state Constitution, and that legal standing must be more readily granted in environmental cases than in others.

**** The Maui court ruled that even if the environmental groups had standing to sue, the DOT did the right and legal thing in exempting itself from doing an EA.

The DOT asked the state Office of Environmental Quality Contol whether the Superferry harbor improvements fell into a couple of categories for which exemptions from an EA are permitted.

But the Supreme Court said it's not enough for DOT to simply conclude that a project fits into an exemption category--it actually has to make a review and correctly conclude there will be no significant environmental impact.

“...blind deference to agency exemption determinations is not appropriate,” the court wrote.

**** The Supreme Court said that the crucial issue in the case is whether the DOT was right in considering only the specific harbor improvements in deciding not to do an EA. Because, the court said, if it considered the larger issue of the Superferry's overall impact, there would be no question.

“If DOT was required to consider the Superferry project itself, as opposed to the harbor improvements alone, in making this exemption determination, it is clear that the exemption would not apply,” the court said.

That's clear, the court said, in part because of the Superferry's own actions. When the ferry company announced it had developed internal policies to minimize its environmental impact, even though not admitting there would be significant impacts, the comments “make it clear that the Superferry project itself—were its environmental effects considered—does not meet the standard of an exempt action.”

The court said that the DOT clearly failed to consider “whether its facilitation of the Hawaii Superferry Project will probably have minimal or no significant impacts, both primary and secondary, on the environment.”

And in failing to consider that, it was wrong, the court said.

The court ruled DOT's exemption from the EIS process invalid.

“The exemption being invalid, the EA requirement...is applicable,” the court said.

The Supreme Court went on to note that while Hawai'i Superferry's voluntary decision to develop its own environmental policies is a good thing, it's not he same as a public process, which by definition allows public participation.

“The public was prevented from participating in an environmental review process for the Superferry project by DOT's grant of an exemption,” the court said.

**** What's still left unsaid is how broad an environmental review is needed. Clearly, the Supreme Court decision requires that an EA be performed, and must consider both the harbor improvements and “the secondary impacts on the environment that may result from the use of the Hawaii Superferry in conjunction with the harbor improvements.”

Does that mean the Maui court can simply limit the EA to direct impacts of the Superferry on Maui harbor users and Maui island drivers, farmers and so on? Presumably it could, but it's also clear that such a ruling could take it right back on appeal before a Hawai'i Supreme Court that has already expressed serious concern with the legality of such limits.

The court does not specifically say that the DOT needs to do an environmental review that considers the Superferry's statewide impact, but that seems to be the essence of its message. And indeed, in meetings with stakeholders Monday, Sept. 3, the DOT said its EA would in fact include all the island harbors to be used by the Superferry.

*** Some folks have argued that citizens stepped up to the plate too late on the Superferry issue. But most of the same arguments we hear today were being made three years ago when the ferry was before the state Public Utilities Commission for a permit. And the PUC, far from deciding an EA or environmental impact statement (EIS) wasn't necessary, said there were in fact “important issues that should be addressed.”

The PUC failed to require a study, the Supreme Court ruling says in a footnote, because 1) the PUC expected the DOT to consider the issues and 2) the Hawai'i Legislature “has determined that this application should be processed expeditiously.”

© 2007 Jan W. TenBruggencate