Superferry

Since the industrial revolution there has been a growing tension between economic development and the environment. That tension has seen pendular extremes, from utter disregard for the environment by industry, to the development of cults of anti-development protestors. The Superferry protestors and their lawyers are beginning to look like the latter.

Anyone who read last week’s Supreme Court decision might have been surprised to discover that it doesn’t concern the possible environmental impact of the Superferry operation. The decision does not find or even suggest that there might be grounds for stopping the Superferry operations for environmental considerations. It doesn’t even discuss that issue. The ruling concerns only the Department of Transportation’s 2004 planned improvements to Kahalui harbor which would accommodate the Superferry.

Now, the Maui wharf improvements are finished and are in place and the sky has not fallen. Please, some one explain to me the purpose of now requiring the Department of Transportation to issue prospective environmental assessment for a proposed wharf improvement that is already in place. Yes, the Department of Transportation can work through most transportation issues, but I don’t think it has a time machine to get it back to 2004 and to handle this one.
In their law suit, the protestors’ lawyers complained about proposed wharf improvements, but wisely choose not make an up front environmental challenge to the Superferry. This is because it would surely lose and, if the compliant were made today, it would still lose.

Norwegian Cruise Lines and other cruise ships dock in Hawaii harbors or constantly shuttle passengers between their ship and the pier. Young Brothers barges and scores of freighters sail in Hawai’i’s waters and are constantly docking in Kahalui and other Hawai`i harbors. Kona and Lahaina anchorages are alive with scores of pleasure craft. Not one of these enterprises has required the production an environmental assessment or environmental impact statement.
Faced the Superferry’s proponents superior position based on reason and common sense, the protestors chose a guerilla warfare type tactic: cripple the Superferry by attacking its infrastructure, its docking facilities and win at any cost. When I went to law school, I was never tutored to, "win at any cost" because the cost might be my integrity.

The operators of the Superferry are playing by the rules: the protestors are playing with the rules. In 2005 when the Maui circuit court ruled that the Department of Transportation was not required to produce an environmental assessment, the ferry operator had a right to rely on that ruling.

In 2005, after the Maui court dismissed their case, if the protestors had any basis for arguing that there would be irreparable injury to the environment, they had options they didn’t take. They could have sought an expedited Supreme court hearing. The issue could have then been resolved before the wharf improvements were started (and now finished) and before the Superferry operator spent millions of dollars preparing for operations.

Now the protestors’ supposed good fortune has given them a taste for blood. They now want to parlay this procedural error to shutdown the Superferry. It’s not hard to see that an injunction might be the death blow to this service geared for local people. It would be a manifest injustice. The protestors’ answer to this possible injustice seems to be –"So what." Let’s hope we don’t hear an Amen from the Judiciary.