Meat of the Superferry Bill

The House has approved the Superferry bailout bill, which now moves on to the governor, who is charged with setting operating conditions for the vessel.

Kauai Reps. Mina Morita and Jimmy Tokioka voted against the bill. Rep. Roland Sagum voted yes.

The bill requires a state audit — due by March 1, 2008 — of the process by which the Lingle Administration exempted harbor construction done to accommodate the ferry, as well as its secondary impacts.

It also requires Superferry to apply for a federal “incidental take” permit, which would allow it to kill or injure a specified number of whales without facing fines or criminal charges. The process could impose additional operating conditions on the ferry, but will take more than a year to complete.

The bill further established an advisory task force, under the management of the DOT, to review ferry operations and make regular reports to the Legislature.

Here is an excerpt from Rep. Morita’s testimony on the House floor yesterday:

Mr. Speaker, I rise in opposition to this measure. The constitution of the State of Hawaii grants this body the power to enact legislation that is not inconsistent with the constitutions of the United States and Hawaii. We generally make laws to protect the health, safety and welfare of Hawaii's people and its environment. We should not be making laws to correct political fixes gone bad which is what Senate Bill 1, Senate Draft 1 attempts to do. I want to emphasize, in this bill this body is not making a new policy or protecting the public interest. Rather, Senate Bill 1, Senate Draft 1 establishes a process to circumvent existing laws to facilitate a permitting process.

Furthermore, our State Constitution, Article XI, Section 9 states:

Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law.

In Sierra Club v. Department of Transportation, Civil No. 05-1-0114(3) (Declaratory Judgment), October 9, 2007, Judge Joseph Cardoza found and concluded "that the balance of irreparable damage favors the issuance of a permanent injunction in this case as 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." Furthermore, the Court also found and concluded that "the public interest in implementing the environmental review process supports the granting of a permanent injunction in this case."

There is no dispute that the legislative intent of Chapter 343, specifically HRS 343-5(b) requires that the "acceptance of the requested final statement shall be a condition precedent to the implementation of the proposed action." And, simply put, Senate Bill 1, Senate Draft 1 clearly abrogates the constitutional rights of the plaintiffs in Sierra Club v. Department of Transportation.

There is no effort in this measure to "strike a balance between the issues of public interest and concerns for the environment" by allowing the Hawaii Superferry to operate. The public interest is served only when the rule of law is followed, not by changing the law to serve the interests of one company, especially after a judicial ruling and injunction against said company.

This body's own committee report states "Your Committees believe that State officials should have been more vigilant in the interests of protecting the environment while seeking to enhance the economy of the State and that more due diligence is required when making decisions that may have significant environmental impacts for future generations." Well, will someone please explain to me how you all can pass this measure and honestly say we are acting in the public's interest when the committee report clearly states otherwise and that the Administration was clearly derelict in its responsibilities to follow the law and protect the public's interest.