Thursday, December 18, 2008

Superferry: No Special Treatment

The Legislature didn’t craft a law specifically to bail out Hawaii Superferry after a court ruling last year temporarily grounded it, the Attorney General’s Office told a skeptical state Supreme Court today.

The five-member court took the matter under advisement, not saying when a ruling would be issued following about an hour of oral argument this morning.

At issue is Act 2, passed by the Legislature after an August 2007 Supreme Court ruling that required an environmental assessment before the Superferry could continue its interisland transport. Once the law was signed by Gov. Linda Lingle, a lower court vacated the Supreme Court’s injunction and the Superferry recommenced operations.

If the law was written strictly to benefit a “closed class,” it would be an unconstitutional abuse of legislative powers, said Isaac Hall, attorney for the Sierra Club, one of three groups filing the lawsuit. Hall contends the law was “conceived, cut and tailored” for the Superferry.

“The Superferry at that point could have appealed to the highest court … instead they appealed and we use that a little loosely, to the Legislature … They could have appealed to you; instead they appealed to the Legislature,” Hall said. “You as the highest court determined we were entitled to an (environmental assessment), and the Legislature can’t take that away from us.”

But the state maintains that Act 2 wasn’t created to benefit a closed class, because the law could apply to other businesses besides the Superferry. In theory, other high-speed ferry transports could come to Hawaii and benefit from the law, said First Deputy Attorney General Lisa Ginoza.

“The appeal is addressing the Legislature’s ability to deal with the important issues of the day,” Ginoza said. “The Legislature speaks on behalf of all of the people of the state … It’s perfectly within their authority to do so.”

But court justices seemed to be having a hard time grasping the concept that Act 2, created in a special session so soon after their ruling, could have been created to benefit any entity besides the Superferry.

“All other businesses have to comply with Act 343 (requiring an environmental assessment), correct?” asked Justice Paula A. Nakayama. “And how many business does Act 2 apply to?”

“Is there any entity that would fit that description except for Superferry?” asked Justice Simeon R. Acoba Jr.

Tough questions by the Supreme Court are just the latest the Hawaii Superferry has had to endure. A legislative auditor report issued yesterday said Act 2 undermines the state’s ability to protect the environment and could set a dangerous precedent.