Friday, October 12, 2007
AG's draft legislation would have protected the Superferry from anything
I couldn't believe the draft bill that Attorney General Mark Bennett prepared for the Legislature. It's too funny (to a non-lawyer like me).
Grab your own copy here and see if you don't think this is Comedy Central material.
It not only amends all existing law, but also makes it retroactive! In other words, if I understand it correctly, had the Legislature adopted this bill, the Superferry could do anything and not be responsible or liable.
They also would not be responsible for anything they did or might have done in the past with regard to all the amended laws.
This draft demonstrates how much the Lingle administration is collaborating with Hawaii Superferry. The AG might as well be the Superferry's corporate lawyer.
There's a whole other issue here with regard to the office of the Attorney General. You'd think an attorney general would be the people's lawyer. In Hawaii, that's a myth at best. The AG defends the state's wrongdoing, whether it is against special needs students screwed out of an education by the DOE, or in this case, it tries to cover up for the Department of Transportation which failed to do a required environmental assessment. The deputy AGs participate with boards (e.g., the Board of Education) in illegal secret meetings. I could go on, but that's another blog post.
Wouldn't it be shocking if our AG advised his clients that they ought to follow state law? I'm not holding my breath.
Setting aside the issue of whether or not it is desirable to allow the Superferry to operate while an EA and/or EIS is prepared, the draft legislation has language that could have effects that go well beyond that objective in at least two areas.
(1) Pp. 3-4 of the draft legislation contains the following two paragraphs:
"The legislature finds, however, that it would neither be desirable nor in the public interest that the operations of the Hawaii Superferry project cease or be limited during the preparation of any required environmental studies, including the environmental impact statement."
"The legislature has weighed competing interests, including all interests served by having required environmental review and studies performed prior to operation of the Hawaii Superferry project, and has determined that it is in the public interest to have the Hawaii Superferry project operate now, and during the preparation of any required environmental review and studies."
The quoted language is wholly unnecessary to achieve the stated goal of the legislation. Instead, it would establish the general precedent that injunctive relief to await compliance with Chapter 343 is not in the public interest, thus having effects extending far beyond the current case. It should be deleted and replaced with an explicit statement that the enactment of this legislation is not intended to set a precedent relevant to any future controversy over the application of Chapter 343 or any other law.
(2) In a number of places (the language quoted below is from p. 4 of the draft), the legislation includes language to the effect that its intent is "to amend all relevant existing laws to provide that, while any required environmental review and studies, including environmental assessments and environmental impact statements, are prepared, AND FOLLOWING THEIR COMPLETION: (1) THE HAWAII SUPERFERRY MAY OPERATE WITHOUT RESTRICTION; (2) agreements with respect to its operation, including the Superferry operating agreement, entered into between the State and Hawaii Superferry, Inc. may be enforced or re-executed; and (3) related harbor improvements may be constructed and used by the State, by Hawaii Superferry, and by others." [Emphasis added].
This language could have the effect of preventing the State from imposing any new restrictions on the operation of the Superferry, even if the EA/EIS demonstrates that operational changes (such as reduced-speed operations in areas frequented by whales) are necessary to reduce the likelihood of environmental harm. This would obviously make a sham of the environmental review process.
Thank you for your excellent analysis!
I understand that the Legislature has rejected this draft, but I'm sure that it will be useful to keep your points in mind should they resurface in a bill introduced in a special session.
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