Making It Right

Arguing for a possible special session of the Legislature, the Governor is reported to have said the following:

Lingle, however, said it is a responsibility of government to make sure that court rulings are "acceptable to the public".

"The court is not the last say," Lingle said. "It is the opinion of the court at that time. I don't think anybody should feel that there is anything wrong with the Legislature passing a law to overturn what a court said.

"The court has to interpret the law as it see it, but if it results in something the elected people feel is not in the best interests of the public, it is not just their right, but their responsibility to make it OK," Lingle said.

http://starbulletin.com/2007/09/15/news/story03.html

Lets us be clear what the Governor means by “to make it OK.”

First of all, what is “it”?

The Governor and the Director of the State Department of Transportation incorrectly permitted Superferry to invest tens of millions of dollars in preparing to provide service in Hawaii without requiring an environmental assessment (EA).

That decision resulted from either pressure by the U.S. Maritime Commission (see note 1), bias toward business on the part of the Lingle administration, an incorrect reading of the law by the Department of Transportation, or incompetence.

After the Lingle administration error, County Councils on three islands passed resolutions calling for an environmental impact statement (EIS) to be prepared, state legislators tried to pass a law correcting the erroneous executive branch decision and got blocked by one legislator, and thousands of citizens petitioned their government for redress of the grievance they had that the potential environmental impacts of Superferry were not to be examined. Basically, history demonstrates that what was “not acceptable to the public” was the erroneous determination of the Lingle administration that an EA for Superferry was unnecessary.

In the face of all this public opposition and even though suits were filed to compel the preparation of an environmental assessment, the Maritime Commission decided to go ahead with the loan guarantees and Superferry decided to go ahead and invest in the project. The Superferry took the risk that the suits would ultimately be successful. That was their business decision. In this case, the opposition and suits made the investment speculative. Businesses make risk assessments all the time and either reap the benefits or pay the consequences of their assessments. The risks are higher in speculative investments.

Then the case reached the Hawaii Supreme Court. The Court reached perhaps the fastest decision in Court history and declared an EA necessary by law. That decision almost certainly brings Superferry to a halt until the EA is prepared. (see note 2).

Now the Governor feels terrible about having made the initial mistake. So does Mr. Fukunaga, Director of the Department of Transportation. They both want to do their part to “make it OK.” Clearly “it” is their mistakes.

Mr. Fukunaga wants to rush through an EA. He is reported to have said:

"The ferry service is highly desired and environmental review is needed to enable its operation, the DOT must accomplish the EA (environmental assessment) in the shortest time possible to avoid the loss of the ferry operator," Barry Fukunaga, director of the state Department of Transportation, said in the request for an exemption to procurement law.

http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=2007709120412

The law requires an objective environmental analysis in an EA. The analysis determines whether there are significant potential environmental impacts or not. If not, the process ends. If so, the process continues with an EIS.

For Mr. Fukunaga, however, the EA is just a formality to be completed “to enable [Superferry’s] operation” and to be done quickly “to avoid the loss of the ferry operator.”

As the administrator delegated to approve or reject the EA, Mr. Fukunaga disqualified himself by demonstrating a bias and a preconceived determination. To make “it” okay by disrespecting the law is not really pono. To subvert the law to cover your own mistake is even less pono. To ask permission to hand pick the consultant to prepare the EA, bypassing normal bidding processes is hardly appropriate under the circumstances.

The Governor wants to “make it OK” by having the Legislature pass an apology bill. That bill would apologize to the Superferry for the erroneous decision of the Lingle administration by permitting Superferry to operate while an EA is prepared. The proposal is itself an admission that following the law would mean Superferry cannot operate without an EA (see note 2).

The whole purpose of the environmental laws is to force decision-makers to take a hard look at potential environmental impacts before making a commitment to an action. To pass a law that makes an exception solely because government officials made an error puts human error correction at a higher priority than environmental protection. That should be an interesting debate.

Look to the future. What if the EA decides that there are potentially significant environmental impacts? In Maui, attorney Isaac Hall has already put on sufficient evidence to reach that determination. Will Superferry then be allowed to operate while the EIS is prepared, i.e. while there are known potentially significant environmental impacts that have not been assessed and mitigated? How much apologizing will be enough?

Maybe the Legislature should consider a simple apology resolution expressing the regret of the State of Hawaii that a mistake by the state’s executive leadership contributed to increasing the risk of Superferry’s speculative investment. Such a resolution would not blow a hole in the existing environmental laws, would not permit the continued operation of what is now clearly known to be an environmental threat, and would not force the State of Hawai’i to fall on its sword for the mistakes of a few.

No one needs to fall on their sword. People, however, do need to step up to their responsibilities when mistakes are made. Then real ho’oponopono can take place. Perhaps ho’oponopono practitioners on Kaua’i will perform that service by bringing together the Maritime Commission, Governor Lingle, Mr. Fukunaga, Coast Guard leadership, and Superferry leadership with the people of Kaua’i to heal the wounds and end this matter once and for all.

Lanny Sinkin
lanny.sinkin@gmail.com

Note 1: The Maritime Administration provided a statement to the Honolulu Advertiser on Septermber 5, 2007 that included the following sentence: “As a condition to Closing, the Maritime Administration required that the State provide written confirmation, in form and substance satisfactory to MARAD, that an Environmental Assessment and/or Environmental Impact Statement for the port infrastructure would not be required.” (emphasis added). That statement is quite different than a condition that all environmental requirements by the State have been met. The statement appears to be an attempt to preempt state environmental law. Imposing the condition is an illegal act outside the authority of the Maritime Commission.

Note 2: The court in Maui is hearing evidence on the environmental impacts of Superferry to determine whether Superferry will be allowed to operate while an EA is prepared. This hearing turns the law upside down. The hearing has put the burden on the opponents of Superferry to demonstrate that there will be significant environmental impacts.  That is exactly what an EA is for.  The proper process would be: state holds scoping hearings to identify issues; state prepares draft document for public comment; state prepares final EA; state agency accepts or rejects final EA by either finding no potentially significant impacts (ends process) or potentially significant impacts (requires preparation of an EIS); state final action is subject to judicial review; in court, opponents of decision not to require EIS put on evidence of potentially significant environmental impacts.  In the Maui court, the process is exactly reversed.  The burden placed on the opponents is unfair and illegal.

State law clearly requires the completion of an EA prior to any decision to take the action in question. The requirement to prepare environmental documentation prior to operation of Superferry is found in section 343 of the Hawaii Revised Statutes.

HRS 343-5(c) says:

Whenever an applicant proposes an action specified by subsection (a) that requires approval of an agency and that is not a specific type of action declared exempt under section 343-6, the agency initially receiving and agreeing to process the request for approval shall prepare an environmental assessment of the proposed action at the earliest practicable time to determine whether an environmental impact statement shall be required.

(emphasis added). For Superferry, the “earliest practicable time” was years ago.

§343-5(c) -- If an EA is required, the law is explicit about the timing:

Acceptance of a required final statement shall be a condition precedent to approval of the request and commencement of the proposed action.

(emphasis added)

When an EA is required, the EA must be finished and accepted by the appropriate authority before the project is allowed to go forward.

Allowing the Superferry to operate while an EA is prepared would be illegal. If the court in Maui finds otherwise, the Supreme Court will be highly likely to correct the court’s ruling.