Thursday, November 1, 2007

Musings: What's Really at Stake

Awoke this morning to the lingering scent of burning pumpkin. Outside, the street was black and shiny with rain; the sky was black and shiny with stars, Orion’s belt among them. Overhead, a perfect half moon persisted, even as dawn brought light to the sky.

Ran into my neighbor Andy on my walk, but we couldn’t chat long because he was being pulled along by his daughter’s dog, which was rarin’ to go — much the same way the state Legislature was pulled along by Gov. Lingle and the Superferry, both rarin’ to go.

Now that the Legislature has passed the bill that allows the ferry to run, all that remains is for the governor to come up with some operating conditions. Within two weeks, the ferry could be ready to sail.

That’s worrisome enough for many Neighbor Islanders. But even more disturbing for the state as a whole is what will be left in Superferry’s wake.

I was troubled to read that a number of Senators had deep reservations about going into special session to pay off what is essentially a gambling debt incurred by Lingle and Superferry investors, but they went along with the bailout bill because so many people want the ferry.

And that’s precisely what’s so insidious and distressing about this whole Superferry scenario. Yes, politicians are supposed to be responsive to their constituents, but the reason we follow the rule of law is to avoid mob rule.

In the case of the Superferry, the Hawaii Supreme Court ruled an environmental assessment was needed before the vessel could operate. That’s the interpretation of state law handed down by an impartial panel of judges appointed to provide precisely that service.

The danger arises when someone like the governor decides she doesn’t like that ruling and then sets out to achieve a different outcome, supported by a crowd whose opinion has been formed by a slick, misleading, corporate-funded PR campaign and media coverage that is skewed and largely superficial.

The result is essentially mob rule, even if it’s executed under the seeming civility of legislative proceedings, and an emasculation of a court system whose purpose is to avoid precisely this sort of public hysteria and political favoritism.

I urge you to read this commentary by Chief Justice Ronald T.Y. Moon, which eloquently expresses the value of maintaining and respecting an independent judiciary, using the infamous “Massie Case” as an example.

A few lawmakers got it, and they voted no. Others apparently got it, but went ahead and voted ye with angst. A majority, however, appear to be clueless about what’s really at stake here.

While much has been made about the environmental implications of allowing the ferry to run without a legally mandated review, and the social divisions created by the controversy, the crux of the issue is the blatant disregard for the rule and process of law.

We’ve already seen this happening at the federal level, and now our Republican governor, with the support of a weak and malleable Legislature, has brought it home to Hawaii.

And that’s something that won’t be fixed by advisory task forces, incidental take permits, vehicle inspections or an EIS.


Anonymous said...

SB 1 SD 1 requires Superferry to submit an application for an incidental take permit (ITP) regarding whales as a precondition for the re-initiation Superferry service (though actual receipt of such a permit is NOT a precondition). Presumably, this refers to Section 10 of the Endangered Species Act. It's my understanding that the proposed issuance of an ITP triggers the applicability of NEPA, the federal equivalent of Chapter 343. Furthermore, any proposal for military use of Superferry is likely to trigger the consultation requirements of Section 7 of the ESA and, again, of NEPA. This should be interesting to watch. If Superferry proposes to do its military work at night, as has been suggested, I'll be interested to see how those NOAA inspectors Superferry must request are going to spot whales in the dark.

Larry said...
This comment has been removed by the author.
Larry said...

It will also be interesting to see if the NOAA inspectors point out that they cannot see in the dark. In which case, does the ferry stop or go?

And will the new law apply to or restrict military use anyway?

The fat lady has not sung, despite Dick Adair's cartoon in the Adv today.

Anonymous said...

The newspaper seems to do that all the time, list the Hawaiian defendent only and don't list the other non-Hawaiians just incase the others came from prominent oriental families. I hate that.