Honolulu: The State Environmental Council, the advisory commission to the Office of Environmental Quality Control (O.E.Q.C), issued an Opinion on Thursday that “the State Department of Transportation (DOT) erred when it granted to the Hawaii Superferry an exemption from the requirement to do an Environmental Impact Statement (EIS).”

The Environmental Council was created by the State legislature to provide direction to the OEQC concerning the EIS process. On Thursday, the Council clearly stepped forward to exert its authority.
In a 9:1 vote, with one abstention, the Council stated that the exemption granted by the DOT failed to take into consideration the cumulative and secondary environmental impacts of the Hawaii Superferry (HSF) project.

In response to a letter from Senator Majority Leader Gary Hooser, D-7th (Kaua`i, Ni`ihau) asking the Council to rule on the matter, the 11 member board met Thursday, in Honolulu, to consider the request. Present at the meeting were HDOT State Deputy Attorney General Bill Wynoff; HSF attorney Lisa Woods Munger; Isaac Davis Hall, representing Maui Tomorrow Foundation Inc., the Kahului Harbor Colalition; and Isaac Moriwake, of Earth Justice Foundation . The HSF, Maui Tomorrow, and Earth Justice all submitted legal briefs to the Council; attorneys Munger, Hall, and Moriwake presented oral testimony.

Taking part in the hearing as witnesses, were also former Maui Planning Commission member Dick Mayer, Rob Parsons – the Environmental Coordinator for the County of Maui under the Arakawa administration, Henry Curtis and Kat Brady from Honolulu-based Life of the Land, John Harrison from the University of Hawaii Environmental Center, and Senator Gary Hooser, who led off the hearing.

At issue was an exemption granted by the HDOT in 2005, stating that the Hawaii Superferry did not have to comply with the State’s environmental laws relating to Environmental Impact Statements. The HDOT based this exemption on their position that proposed impacts to the harbors were minor. The Environmental Council strongly disagrees.

In a lively discussion among Council members, there was a consensus that this case is a most blatant example of flagrant disregard of the State’s environmental laws in recent memory. In the words of Earth Justice attorney Isaac Moriwake, “the DOT did violence to the State’s environmental statute HRS 343 and undermined the intention and spirit of the law.”

In the view of the Council, the HRS 343 requires that “the HDOT look at the cumulative and secondary impacts of actions that occur repeatedly and over a long period of time.” The combined impact of 882 people and hundreds of vehicles landing on each island daily, and over a period of years, necessitates close public scrutiny through the investigative process of an EIS, that incorporates broad public input and accurately describes potential mitigation measures.

Not insignificant was testimony that the HDOT had set precedent by doing its own 561 page EIS for the Oahu Intraisland Ferry System in 1989, for a project with far less environmental impacts.

Throughout the hearing, the Council’s legal counsel and the HSF legal counsel argued to defer a ruling, and questioned the Council’s legal ability to take any action. The Council, however, saw this issue as an exact area in which their interpretation was sanctioned, and felt that the Courts and the public could well benefit from the Council’s own interpretation of their rules. They chose to assert their legal authority by voting to issue an opinion in the form of a letter of response to Senator Hooser.

The legal implications of the Opinion will soon unfold. Legislation is before both the House and the Senate in companion bills, calling for an EIS requirement for the Superferry. Legal proceedings continue in the Circuit Court and the Supreme Court that could be impacted by this Council Opinion.

This Opinion lends support to the perspectives of the County Councils of Maui, Hawaii, and Kauai, and many others who have been calling for an EIS on the HSF for more than two years.