Thursday, October 25, 2007
Oahu Senate hearing - some government testimony
Henry Curtis circulated this message to his email list. It is reproduced here for your browsing pleasure, with his permission.
I watched some of Ted Liu (DBEDT)'s testimony. The senators asked him some tough questions, and he didn't survive them. For example, he claimed (as you will read below) that the ferry is useful to farmers, but the senators confronted him by pointing out that farmers who testified said they wouldn't use the Superferry, it was too expensive, etc. They also asked him if he had done a cost-benefit analysis and he had not (this is going from memory).
Anyway, over to Henry's email:
Oahu Hearing: Day 1
There were a handful who signed up to orally testify and then left, so say 60-70+ wanted to give oral testimony. IThe hearing started off with 2 hours of testimony and questioning of the five Lingle people, and then fairly even among the community with about 6 for 5 against and then went through a long string of pro ferry, maybe 19-7, those at the end were predominately NOs, and the balance didn't return till after 6 p.m.
The written stacks were 80 percent in favor of the ferry. The public access room got 2500 emails overnights after the Sf put out the word.
Written Testimony of four govt agencies
The Department of Business, Economic Development, and Tourism (DBEDT) supports the Senate Bill (SB) under consideration relating to transportation, in which the Hawaii State Legislature adopts, clarifies and amends policies providing for continued operation of large capacity inter-island ferry service while any required environmental review and studies are conducted. We support the legislature's explicit finding that the operation of large capacity ferry vessels between Hawai'i's islands is in the public interest.
The department's testimony will focus on the public and private economic benefits that large capacity ferry operations will provide. We defer to other State agencies on specific provisions of the bill that relate to their responsibilities.
In general terms a steadily growing economy leading to rising wages and a higher quality of life depends, in large part, on improving an economic system's efficiency.
Hawaii's economy is unique in that it is comprised of a multitude of islands. Traditionally, there has been less-than-optimum economic integration among the markets of each island. The result is that Hawaii is not one large market, but a series of small markets. This leads to higher costs, limited markets and lower sales and less income for businesses, service providers and farmers. Reliance on higher-cost air service and longer delivery-time barge service for shipment of goods and products among the islands represents a "friction", the elimination of which will lead to greater economic efficiency. I note that this lack of
efficiency is what allows ,'big box" retailers to compete more effectively against Hawai'i's producers.
Increasing Hawai'i's economic efficiency requires, among other things, improving its infrastructure, including its inter-island transportation infrastructure. The advent of large capacity inter-island ferry service represents such an infrastructure improvement that will lead to the benefits of a steadily growing economy. As the SB finds, large capacity ferry service
''provides a real and innovative alternative to existing modes of transporting people, motor vehicles, and cargo between the islands of the state''
The overriding concern with the lack of large capacity inter-island ferry service as a result of judicial decisions is that several key segments of Hawai'i's economy will not be able to develop in a timely manner that benefits all of our residents. Indeed, for some of Hawaii's businesses, such as in agriculture, this lack of an alternative mode of transportation may threaten their economic viability. As the SB notes, rapid and convenient inter-island transport of goods, vehicles and people will enhance the quality of life for all residents on all islands.
DBEDT strongly believes that the better economic integration brought about by a high capacity inter-island ferry system will benefit all of the State's residents, but particularly benefit the residents and businesses of the Neighbor Islands, Farmers and food processors state-wide will benefit in many ways as produce and agricultural products only grown on one
island will be easily be shipped to restaurants and markets on the other islands in a timely way, while preserving freshness. Similarly, those providing maintenance, repair and construction services can far more easily travel to and from all islands with their vehicles and equipment to provide reliable, cost-effective service to customers around the state. DBEDT believes this will lead to economic benefit for all Hawai'i residents and an improved quality of life as residents and their families enjoy all the parts of our state.
Recently there has been significant focus on issues relating to energy and global climate change. The State's policy is that Hawai'i must do what it can to reduce its dependence on non-renewable energy sources and reduce its greenhouse gas emissions. As the SB notes, an inter-island ferry will produce fewer carbon emissions than the equivalent airlift carrying cargo and passengers between islands. It provides an efficient and energy conservative mode of travel.
DBEDT also supports the SB's policy that the operation of a large capacity ferry can support civil defense response and recovery under the unfortunate circumstance of a natural or a man-made disaster, be it a major brush fire, earthquake, tsunami or any number of other possible unfortunate events. A high capacity ferry would allow quick deployment of
equipment, supplies, food, medical support and whatever else might be needed to the area. Large equipment and vehicles such as fire fighting apparatus, hazardous distressed materials handling equipment, electric pole and line restoration trucks and other public safety vehicles could get where needed in hours, instead of the days that it could take with present vessels. A high-capacity ferry could also transport significant numbers of injured or sick people, including those not easily accommodated on an aircraft, away from the disaster scene to appropriate medical facilities on another island.
DBEDT fully recognizes the importance of preserving and advancing Hawaii's natural resources - its unique and beautiful environment. DBEDT also recognizes the fragile nature of our eco-systems.
These natural resources are the fundamental basis of Hawai'i's quality of life and its economy. As such, DBEDT recognizes that certain requirements may be imposed on a high capacity ferry as a condition of operation. We believe that SB strikes
the proper balance between allowing a public interest to be served while ensuring that the environment is protected.
DBEDT believes that the mechanisms in the SB - Governor's executive order and the task force's reporting requirements are sufficient to achieve that proper balance.
Finally, DBEDT will be an active participant on the temporary inter-island ferry oversight task force. One of its goals is to examine the impact of ferry operations on the economy, an issue of great importance to the department. We will provide any support needed by the Department of Transportation in carrying out the responsibilities of the task force and reporting to the Legislature and the Governor.
Department of Agriculture
Thank you for the opportunity to testify on this Senate bill to permit the operation of an inter-island ferry service in the State of Hawaii while an environmental impact statement is being conducted, while at the same time, ensuring that there is adequate
protection of the environment. This bill will also establish an oversight task force for the purpose of examining the impact of inter-island ferry operations on the communities, environment, and harbor and other infrastructures.
We strongly support this bill.
There is a critical need for more transportation options and improved transportation infrastructure. Unlike other states which have access to rail and trucks, Hawaii is dependent on only two means of moving products in to the State and between islands. Hawaii's farmers and ranchers are geographically disadvantaged compared to mainland farmers and ranchers because of the costs and conditions involved in moving agricultural products across the ocean. An additional ferry vessel will provide more transportation capacity for our farmers and ranchers to reach their markets.
The Department has trained the Superferry staff and is confident that their staff will screen appropriately for agricultural commodities. Superferry has set a higherstandard for invasive species mitigation measures which is over and above any other
transportation operating to monitor carrier currently in Hawaii. Even so, we will continue their operations.
The Hawaii Department of Agriculture (HDOA) continues to work towards strengthening our biosecurity program to assess and mitigate risks of the introduction and spread of invasive species. The United States Department of Agriculture (USDA)
and HDOA will collaborate to assess the movement of red imported fire ant and other invasive species from the continental United States to Hawaii. Together, we will be implementing an Agricultural Quarantine Inspection Monitoring (AQIM) pilot project on the maritime pathway. Due to the concerns about inter-island movement, the Department has requested and USDA has agreed to add on the inter-island segments as well. The long term goal is to facilitate risk-based decision-making by both HDOA and USDA using data that identifies risk factors associated with various entry pathways and commodities destined for Hawaii and between the islands. The pilot project will not be conducted on Superferry system. alone, but on the entire transportation
In summary, large capacity inter-island ferry service creates another important option for farmers to transport their products to market. This can open up opportunities for farmers to expand their customer base and explore different modes of distribution.
The Department of Transportation supports the proposed legislation, which encourages and advances viable ocean-based inter-island transportation alternatives in the State of Hawaii. Historically, inter-island ferry operations in Hawaii have proven unsuccessful due to technological restrictions (vessel/hull/engine design), ocean conditions and an inability to compete with air transportation costs. Large capacity ferry vessels, which accommodate passengers, cars and trucks, operate at high speeds and. incorporate state of the art hull designs and engine technology, provide the only feasible alternative to our present air-only inter-island passenger transportation option and are, as such, in the public's interest.
The legislature acknowledged and recognized the viability and importance of this alternative mode of inter-island travel through unanimous support of the large capacity ferry vessel project in 2004 through Senate Resolution 74 and SCR 149.
The Department of Transportation believes it is critical for the Legislature to permit the operation of large capacity ferry vessels and the continued construction and use of State of Hawaii harbor infrastructure pending completion of the required environmental review process. Due to the length of time needed to complete an environmental study, there is the likelihood of the loss of the service if operation cannot be allowed to occur in the near fixture. Use of harbor infrastructure also generates the revenue necessary to support harbor construction and maintenance projects, including but not limited to those harbor infrastructure improvements made 'to accommodate large capacity ferry vessels.
The legislation proposed provides a basis for establishing reasonable operating conditions, protocols and mitigation measures for large capacity ferry operations pending completion of the formal environmental review and the Department commits to accomplishing the required Environmental Impact Statement consistent with HRS Chapter 343 and the proposed Legislation.
The Department of Transportation is prepared to work with the temporary task force established by the proposed legislation.
I testify in support of S.B. No. 1. S.B. No. 1 represents a reasonable compromise, that both allows the Hawaii Superferry to operate and helps protect Hawaii's environment. Among the provisions in the l-aw are those that require the immediate imposition of conditions on the operations of the Superferry, while reserving to the Legislature the right to impose additional
conditions. The bill also requires a complete Environmental Impact Statement, not just an Environmental Assessment, immediately establishes a Task Force to study and report on operations, and has a sunset provision in mid-2009.
The Legislature acting to amend the law in light of a court decision is neither unprecedented nor unusual, and it is fully in line with the role of the Legislature to enact our laws. The Hawaii Supreme Court has interpreted the law as it now reads, but it is the constitutional responsibility of the Legislature to decide if that is how the law should remain for the future.
While some have stated publicly that the bill is unconstitutional, I wholly disagree. A seminal case in point is Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992). In Robertson, a unanimous United States Supreme Court upheld a
Congressional enactment that had the effect of changing the result of a federal-court environmental case involving the spotted owl, logging, and the Endangered Species Act. The Court found that even if a Congressional enactment had the effect of changing a result in a case, it was within the Congress, s power to effect such a change by changing the law and changing applicable standards. That is precisely what this bill does. ft is wholly forward looking, and thus constitutional.
Moreover, there are many other examples of legislative bodies acting to exempt specific projects or categories from the environmental review process. In 1998, the Legislature passed a law, Haw. Rev. Stat. § 343-6.5, that very simply stated: "The purchase of the assets of the Waiahole water system shall be specifically exempt from the requirements of chapter 343." In 1995, the Legislature adopted Haw. Rev. Stat. S 183B-2 that exempted from Chapter 343 the " reconstruction, restoration, repair, or use of any Hawaiian fishpond" in certain circumstances. There are no doubt other examples in Hawaii's laws.
An example that directly affects Hawaii is Congress's exemption of H3 construction from federal environmental-laws, Court decisions had stopped construction of the H3. At the request of Senator Inouye and others, Congress exempted H3 from a number of provisions of law. As hawaiihistory.org describes it: "Hawaii's Senator Inouye removed the last obstacles by winning the project legal exemption from all federal environmental laws."
This law terminated the lawsuits and the project was able to proceed. There are many other examples of similar actions by legislative bodies.
Nor is passing legislation in response to a specific court decision in any way unusual in Hawaii or anywhere else. Act 58, Session Laws of Hawaii 2001, for example, adopted over the Governor's veto, specifically reversed the decision of the
Hawaii Supreme Court in United Public Workers, AFSCME, Local 646, AFL-CIO v. Hanneman, 106 Hawaii 359, 105 P.3d 236 (2005) regarding management rights. And in Act 112, Session Laws of Hawaii 2006, the Legislature overruled the decision of the Hawaii Supreme Court in Kienker v. Bauer, 110 Hawaii 97, 129P. 3d 1125 (2006), relating to joint and several liability.
This is a common occurrence, and part of the normal constitutional process of the courts interpreting the law as it is written, and the Legislature then determining whether that is the law as it ought to be.
While there is no doubt that opponents of this bill will challenge it, challenges to the. Legislature's, authority to enact this bill should not succeed.
I also suggest that if amendments to this bill are proposed section 16 should be amended as follows:
"SECTICN 16. Every large capacity ferry vessel company that has the legal right to operate pursuant to section 3 of this Act during the time period this Act is effective, by exercising such right to operate at any time this Act is effective, by such operation releases and waives any and all claims that have accrued or arisen as of the effective date of this Act, for damages or other judicial relief it or any of its agents, successors, and assigns might otherwise have or assert against the State of Hawaii, its agencies, and its officers and employees, in both their official and individual-capacities, that have or may have been caused by or are related in any way to:
(1) The need, requirement, preparation, non-preparation, acceptance, or lack of acceptance of or for any environmental assessments or environmental impact statements ; or
(2) Any judicial action regarding the establishment and operation of the large capacity ferry vessel in the state, and such large capacity ferry vessel company by such operation accepts the obligation to, and thus shall indemnify and defend the State of Hawaii, its agencies, and its officers and employees, in both their official and individual capacities, from such claims brought by, through, or under the large capacity ferry vessel company or any of its agents, successors, and assigns."
This amendment makes clear that the waiver in this section is only as to past and not future claims, and is effective only if the bill works to allow the Superferry to actually operate .
It is the Legislature's role to decide policy in Hawaii. I respectfully suggest that S.B. No. 1 represents good policy and ought to be enacted into law.
Henry Curtis, Executive Director, Life of the Land, 76 N. King Street, Suite 203, Honolulu, HI 96817. phone: 808-533-3454. cell: 808-927-0709. Web Site: http://www.lifeofthelandhawaii.org/ email: email@example.com
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