Wednesday, October 10, 2007

Superferry Maui ruling: rolling rocks

Deep inside a Maui judge's ruling on the Hawai'i Superferry are key pieces of information about the case.

Perhaps the most important is that Circuit Court Judge Joseph Cardoza joined the Hawai'i Supreme Court in concluding that the ferry's requirement under the state's environmental law to perform an environmental study is inescapable.

In retrospect, one wonders how anyone reading the law could have thought otherwise.

Cardoza, who previously ruled in favor of the ferry, said that the arguments for a study were persuasive.

His words: “...Plaintiffs have demonstrated the possibility of irreparable injury with respect to the environmental impacts of Hawaii Superferry operations on natural resources, protected species, increased introduction of invasive species and causing social and cultural impacts.”

He ordered the Hawai'i Department of Transportation not to allow the Superferry to use the ferry's Kahului Harbor terminal until “the environmental review process..has been lawfully concluded.”

Cardoza further voided the Superferry's operating agreement with the Department of Transportation, although only specifically in connection with Kahului Harbor.

The agreement was ruled void, he said clearly, “because it was not preceded by the requisite environmental assessment which was a condition precedent to approval of the request and commencement of the proposed action.”

Cardoza previous had ruled that the Department of Transportation's decision not to require an environmental assessment was okay. But in his latest decision he was constrained by the Hawai'i Supreme Court's take on the issue.

The Supreme Court said the Department of Transportation had 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.”

That's the legal theory that you must not roll a rock down a hill without considering what happens when it gets to the bottom of the hill.

Perhaps the most intriguing question in a Honolulu Star-Bulletin poll on the ferry was this:

The poll found that 40 percent of Hawai'i residents felt it would not be a “problem” if the ferry ran into a whale.

Not a problem for whom?

It would clearly be a problem for the whale.

And given the kind of scrutiny previous Hawai'i vessel-whale impacts have gotten, it would just as clearly be a problem for the Superferry.

Who's left not to have a problem?

The poll respondents themselves, maybe.

© 2007 Jan W. TenBruggencate


RobertWood said...

Nicely presented piece. Thanks.

While it appears Circuit Court Judge Joseph Cardoza's ruling yesterday is a very balanced reading of the law, I wonder what motivated his dramatically different interpretation in the summer of 2005?

Sure he ruled in 2005 that the plaintiffs did not have standing, but the contrast between the two rulings is so remarkable that they seem to have come from two different people.

Thanks again.

Anonymous said...


Anonymous said...

I wondered about this too.

How did Circuit Court Judge Joseph Cardoza, misinterpret HEPA so wrongly?

Is there some where you can read the reasoning behind his ruling to not require the EA.