Tuesday, October 09, 2007


More fish in the Superferry soup

by Larry Geller

We've just learned of Maui Circuit Judge Joseph Cardoza's ruling that the Superferry cannot sail to Maui without a completed environmental assessment. Speculation is that his ruling will be appealed, and that the Governor will navigate over to the Legislature this afternoon to demand a special session. Probably, given Speaker Calvin Say's support, there could indeed be a special session called.

There are more fish in the soup, however.

Kauai Rep. Mina Morita has asked the PUC to intervene, possibly pulling the ferry's operating permit:

The representative, who chairs the House Energy and Environmental Protection Committee, filed a formal complaint with the Public Utilities Commission on Sept. 27 after an informal complaint was rejected.

Hawaii Superferry is in willful violation of its operating permit — the PUC’s Certificate of Public Convenience and Necessity, Morita said.

The certificate — the company’s harbors operating agreement with the Transportation Department — contains clauses that call for compliance with environmental laws.

I also wonder, given that Rep. Morita is chair of the committee, if a bill to allow the Superferry to sail would get through her committee.

Agreement by Neighbor Island legislators may also be hard to get, and might polarize the Legislature into Oahu and Neighbor Island factions. Regardless of the outcome of a special session, should angry House members join with dissidents in the future, Speaker Say may find himself in dangerous waters in the next regular session.

The House majority blog hints that there is still opposition to giving in to the Governor, should a special session be held. Rep. Kirk Caldwell writes about the refusal of the gov to share an Attorney General opinion with legislators:

The Governor is now saying a special legislative session on the Superferry should be called regardless of tomorrow's ruling. If we are to effectively resolve the problem, we need the Governor and the state administration to work with the legislature and provide the information we need to ensure that good policy prevails.

Earlier in the same article Rep. Caldwell offers an argument that I have also made to legislators: I feel that it's bad policy to overrule a judge and grant an exemption to a single corporation. What happens when the next company wants one? And the next? If it was good law to start with, then it should apply equally to all companies. Which means nothing special for the Superferry. But in Rep. Caldwell's words:

As the saying goes, two wrongs don’t make a right. I support the Superferry, and like the majority of people in Hawaii, I think we need an alternative mode of transportation between islands. But, there is more to this issue than public polls and political spin, and I believe the legislature needs to go forward judiciously before setting a policy to essentially accommodate one project.

Activist Andy Parx has researched the requirement for a Special Management Area permit, which may be required for all private projects along the shoreline according to the federal Coastal Zone Management Act (CZMA), and which has not been obtained. The state no doubt would hold that they can exempt the ferry operation, and a question is who would put the issue before the feds anyway.

There's also the question of whether something is fishy with Belt Collins getting the contract to do the environmental assessment. Initially, the state Department of Transportation wanted to give the contract to Belt Collins, a firm with which they have a long relationship.  Belt Collins happens also to be working on plans for Kahului Harbor. According to this AP story, the state was forced to go to competitive bidding. And who should win the bid? Belt Collins. The story also notes that

The notice calls for the study of ferry improvements and operations at commercial harbors. It does not specifically mention the impact on whales or the spread of alien species.

So I ask: if the EA is done this way, won't a judge just toss it out as inadequate? After all, this is about whales and endangered species isn't it? The larger impact is what has to be considered, not just harbor improvements.

Also, if another bidder feels that the contract has been awarded improperly or the bid process was in error, they can challenge the award, which would cause delays. Perhaps the opportunity for challenge goes beyond other bidders, I'm not sure how that works.



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