Friday, November 02, 2007


Legislators need to accept responsibility for their votes

by Larry Geller

This just in from Rep. Kirk Caldwell. I'll comment in red.

Dear Neighbor,

Although the public is more than a little tired of the Superferry story, there are dimensions to it well worth exploring that will change the way development is planned in Hawaii in the future.  And directly or indirectly this will affect everyone who lives here.

Maybe legislators are tired of the Superferry story, but the people now have to be vigilant because the lege wouldn't let the highest court's ruling stand. There may be need for more protests, and if injuries or even deaths are to be avoided, everyone will have to be very alert. It's not over. 

The Supreme Court ruling

At the center of this change is the ruling issued by the State Supreme Court on August 31, 2007 in the case brought against the State of Hawaii and the Hawaii Superferry by the Sierra Club, Maui Tomorrow and the Kahului Harbor Association.  There are two big takeaways from this ruling that go well beyond the operations of the Superferry.

First, projects that are potentially covered by Hawaii's environmental protection laws, must consider the effects of secondary impacts as well as primary ones in determining if they need to conduct a formal environmental review and what is covered in that review.  Because the State's dock improvements in turn allowed ferry operations, then the impacts of the ferry are among the environmental issues that must be addressed.

If this is one of the "takeaways," how come the Legislature didn't get it? It's just the law as it is currently written. You did the opposite and overruled the court.

Second, the court enunciated that there is an inherent value to public participation.  Public interaction in the review process of an environmental assessment or an environmental impact statement benefits society as a whole.  The court was unequivocal on this point.

These points taken together clarify any doubt that the state, county and business might have had regarding projects they are considering.  Going forward, no more playing chicken with the law. 

The Legislature, particularly the House, did just that—why should we believe it will do anything different in the future? You voted to disregard the law, and to set aside the environmental issues "that must be addressed."

There are those who might label this anti-business.  But the decision establishes certainty for the future.  When it comes to development of our islands, the best policies are clear, open and upfront, rather than vague, private and untimely.  In that respect, this level of certainty is an improvement.

There are of course perfectly clear laws that the Legislature has now muddled and weakened. What should have been "certain" was totally reversed. Next time, we assume you'll just do the same. Suppose another ferry company came knocking at your office door, demanding the same exemption granted to the Superferry. Will you deny them? Will you be comfortable not giving in to business? Do you honestly believe anything will change?

Last year the House caved in to big oil. This year to the Superferry. The welcome mat is out for business interests, particularly those who aim their campaign contributions accurately. 

Lessons beyond the Court

There are long term lessons learned beyond the court ruling.  For all the legal wrangling, point-counterpoint arguing  and emotions within the Superferry debate, there has been some extraordinary common sense savvy. 

At one State House hearing, Maui Council Chair Riki Hokama summed up community sentiment when asking, "When are we saying enough is enough?  Who are we building for?"

Those words should resonate with everyone, whether you are a neighbor islander or a Honolulu urbanite.  In the future they must be asked and openly discussed before the cement is laid.

Why then did the Legislature do its work largely in secret, revealing the work product to the public as a fait accompli?

Are we building for quality rather than volume?

Are we creating self-contained communities where people can live, work and enjoy life without continually burning away hours in order to travel elsewhere?

Are we using the remarkable resources of these islands in respectful stewardship?

For those who say these questions are too much to ask, wait until there is a project that comes along which impacts you, to see how you feel if it is planned entirely behind closed doors.

Finally, there was a very solid reminder that there is a lot more to doing the right thing than can be covered merely by government regulation. 

In the closing moments of the special legislative session, Representative Kyle Yamashita of Maui gave a floor speech in which he recounted conversations with people from his community who had expressed concerns about invasive species that might be carried by a variety of sources.  He called upon everyone to protect against this spread by taking personal responsibility and self-policing. Representative Yamashita got it right.  We all have a role in this.

If he got it right, then why did the Legislature allow the ferry to operate before an EIS was completed? Why didn't you change your vote to no?

These are lessons of law, private and public institutional accountability and personal responsibility that go beyond Superferry operations and which will guide the development choices of our islands in the future.  The recent debate has brought us to an elevated stage of awareness. It will sharpen the focus of the 2008 legislative session on development, sustainability and quality of life.  Let's use the experience and knowledge we've gained for the better

The experience we've gained is that our representatives will ignore the law, override  court decisions that seek to protect the environment, and are willing to overlook the lessons of law, private and public institutional accountability that it should have learned when the Supreme Court ruled that the ferry can't sail before an EA or EIS is completed.

The 2008 session may face issues of ethics, campaign finance reform and other demands that lawmakers be more responsive to people rather than to big business and their hired gun lobbyists.


Representative Kirk Caldwell

District 24

Manoa, Punahou, Moiliili, University


I believe the legislature did the right thing by allowing the HSF to

Yes there was mistakes done during the HSF approval process. A EA should've been done before HSF commenced service.

But forcing HSF to shutdown after millions were invested was going to leave a permanant black eye on on Hawaii's business climate.

Why would anyone want to invest money here when government assurances can be depended on.

On a related note, you tried to rebut my poor business climate argument on Doug's blog awhile back .You said some businesses like Costco don't think we have a poor business climate.

I'm sorry to bust your bubble. But
Costco is not something that will diversify our economy here. The HSF
will bridge our islands and diversify our economy.

Comments like those coming from Caldwell really irk me. He talks about everyone else being more vigilent but doesn't even address his own vote. Thanks Larry, for trying so hard to make sense out of people like him who don't think they should be held responsible for their actions.
But I disagree with Aaron Stene. No business should be exempt from the law, especially one that should have done an EIS from the start. Hawaii is special and as such it should be treated that way.
Any business that wants to do business here must be one that knows respect.

Aaron, I have no crystal ball. I have no idea how our economy might benefit from the Superferry. Perhaps only experience will tell.

I heard testimony from farmers that they would not use it, and I spoke with two electricians on Oahu who said that it would be too expensive to take the ferry to another island to ply their trade, there is enough demand here. Perhaps it might work for tradespeople on Neighbor Islands to come here, I don't know. I don't see any big revolution though. But as I said, I have no crystal ball.

Retail is big. More jobs have been created in retail than many other industries (no I don't have numbers, but I do shop). They're not great jobs, but that's always been a problem here.

One of the papers said that people are coming back from the Mainland to take Walgreen jobs. That's curious, but note that high-tech hasn't brought back too many people, for example.

Let's just look at the reality of Hawaii instead of hoping for a "business climate" that is unlikely, at least for now. Or that the Superferry hype is going to revolutionize anything. How should we focus our energies on improving our economic prospects? I don't know, but it doesn't look as though anyone else knows either.

Oh... Superferry profits, if any, go largely to out-of-state investors. How many good, full-time jobs have they created? Sadly, many of our most successful businesses send their profits out of state. This helps drain, not improve, our economy. I just thought of that. I wonder if it makes a real difference.

Larry, thanks for doing such a great job on the ferry issue.

A minor issue. You wrote: "The welcome mat is out for business interests...."

I think "corporate interests" is more accurate. We are living in fascism, American style. Corporations rule, not necessarily businesses.

Most industries here send their profits out of state. From the hotels,to COSTCO. So the it is irrelevant that the same thing would
apply to HSF.

We need a more sustainable economic base. Which is not depedent on Tourism, Real Estate and the military.

I'm still waiting for the NIMBY/CAVE folks to show their
plans to make Hawaii more sustainable economically.

speaking of taking responsibility for their votes, check out Kaahumanu vs. County of Maui. This was a case that Sen. English was actually involved in when he was on the council. From what I understand, the decision held that when legislators (in this case councilmembers) act for one specific project or company rather than a generally applicable law, they are actually acting in an executive capacity rather than legislative, and they become personally liable for damages that may result. Some of the house members at least were aware of this, and it may be at least part of the reason why they put this facade on it being any old "high capacity ferry" that happens to be out there, but I'm not sure if that matters. It is obviously legislation that affects one and only one party. So the senators and reps who voted for the bill could be sued personally for damages that might result. I am not a legal expert and haven't looked into this directly myself, so take this with that in mind, but this is my understanding of it based on what others more knowledgeable than I have shared, and those who are so inclined can look it up for the details...

Here's a link that explains Kaahumanu vs. County of Maui.

To Anonymous: yes, I agree that "corporate interests" is better.

To Scott: thank you for that case and the explanation. I will look at it. I'm sure you have something, re the transparent device of using the phrase "high capacity ferry," and the motivation for using it.

Thanks Larry, You and that house blog zero toward the meat of the issue and ask some intriguing questions. The make nice by Lingle, Caldwell is PR wrap -it-up and with the help of the papers is meant to quite the chatter. Like the outing of Valerie Plame that poked a rusty hole into the facade of WMD's, making special laws"for the people ferry" just doesn't hold water. Rust spreads and is tough to halt. Best just to spray some inhibitor on it and then bury it. Caldwell spoke of "backwaterism" too and best not to go there. I think he's been there, paddling with the rest of the legislature with a white whale strapped to the bulkhead

From the Star-Bulletin article yesterday:

"House Speaker Calvin Say, a 31-year legislative veteran, said he had never seen a session like the just-concluded five-day special session for the Hawaii Superferry.

"Asked why the Legislature returned to write a law especially designed to allow the ferry to sail, Say said it was public pressure and fears about the state's anti-business reputation."

Despite the (transparent) attempt at generality in the bill, Say is directly admitting that it is a law especially designed for one business. Thus the legislature was acting in an administrative capacity.

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