House and Senate Work on Superferry Bill, but More Legal Hurdles May Be Ahead

Jim Paul
Jim Paul

HONOLULU (KHNL) --- Members of the Hawaii Senate and House of Representatives were busy reworking the draft of a bill Friday that could potentially get the Hawaii Superferry up and running during the environmental review process.

The senate majority caucus met yesterday to discuss a draft presented by Hawaii Attorney General Mark Bennett.

It would require a full environmental impact statement (EIS), versus just an environmental assessment (EA). But senators were concerned the measure didn't have adequate environmental mitigation provisions.

Senate President Colleen Hanabusa, (D) Ko Olina, Nanakuli, Waianae, said Thursday, the bill would address improvements at Kahului Harbor.

"It's not the Superferry," she said. "It's really the state; the state harbors that are being enjoined, and as you know, the decision is such that it only affects Maui. It doesn't affect Oahu. It doesn't affect Kauai. So these are the kind of issues we're going to look at and see how do we craft something, if we craft anything at all."

Addressing mitigation provisions in the bill could take some time. The goal for now is not to amend the environmental policy act, but to address the specifics of the Maui injunction.

The revised bill could determine whether a special session is called, and the wording of that bill will determine whether the state opens itself up to more criticism.

This is highly unusual: a possible special session for a specific business. The wording of the bill must be very precise to avoid further legal challenges, but even still, there may be more hurdles ahead.

The House and Senate majority held emergency caucuses this week to discuss the fate of the Hawaii Superferry. Governor Linda Lingle, (R) Hawaii, hopes for a special session to craft a new bill that would allow the ship to operate while the environmental process is going on.

"No one would disagree that it's very unusual to have a special session with respect to a specific business," said Jim Paul, a commercial trial lawyer and a partner with Paul Johnson Park & Niles law firm. "And under these circumstances, I'm sure there have been some analogies in the past, but it's quite unusual."

Unusual, but not unprecedented in Hawaii history. A similar thing happened during the construction of the H-3 freeway in the 1980's. Senator Daniel Inouye, (D) Hawaii, granted the project exemption from most environmental laws.

So, if lawmakers rewrite the statue, does it mean the legislative branch trumps the judicial branch?

"If they decide to change the statute, they're not really trumping the judicial branch, but just changing the ground rules, changing the statute if they choose to do so," said Paul.

The Superferry dilemma could get more complicated if the matter goes beyond the state's jurisdiction.

"If there are some federal statutory questions here, of course, the state legislature cannot change federal statutes," said Paul. "So, there may be a whole another level of analysis here."

And a revised statute could bring allegations of favoritism from other businesses.

"Hypothetically nothing would prevent other companies from coming and saying we would like some special treatment in the future as well," said Paul.

That's why how the bill is worded is so crucial.

"It depends entirely on the language which the legislature adopts and entirely upon what they're going to do," said Paul.

A few more legal hurdles in the Superferry saga.

It's hard to say anything for sure until we see the final version, but legislators hope they can craft a bill that would keep the Superferry running and address environmental issues while the EIS is going on.