Legislative action uncertain even if special session called

The Maui News
Wednesday, October 10, 2007

By BRIAN PERRY and CLAUDINE SAN NICOLAS, Staff Writers

HONOLULU – With a Maui court decision leaving Hawaii Superferry tied up in port, a possible legislative special session will be discussed today by Democratic lawmakers at the Capitol.

But the idea of changing state law to suit the Superferry wasn't enthusiastically received by Maui County legislators contacted Tuesday by The Maui News.

Sen. J. Kalani English, whose district includes Upcountry, East Maui, Molokai and Lanai, said he didn't think it was in the public's best interest for lawmakers to go into a special session.

"It would be a very, very bad precedent . . . to change the law for one company," English said. "That is not acceptable."

He indicated that he thought it would be unlikely that two-thirds of the Legislature's lawmakers would agree to go into special session, but he pointed out that Gov. Linda Lingle has the power to call the body into session to take up the matter.

Lingle met with leaders of the Legislature Tuesday afternoon in a private session to talk about what action to take. A strong supporter of the Superferry, Lingle said she would leave it to lawmakers to call a special session to deal with the issue.

''The only way to do it now, in my opinion, is through some sort of special legislation,'' Lingle said.

House Speaker Calvin Say said he would discuss the issue with House members today. Senate President Colleen Hanabusa said she planned to consult with members of the Senate on Thursday or Friday.

But it's unclear what kind of law could circumvent rulings by both Cardoza and the Hawaii Supreme Court requiring the environmental study.

English said if Lingle wishes to have legislative action, she should have a plan and a bill ready for consideration.

"The simple thing to do is comply with the law, which they should have done from the beginning," he said.

As it was handled with the administration granting an exemption from environmental laws that led to the court challenge, English said, "Everyone loses."

State Rep. Joe Souki, who represents residents of Wailuku, Waikapu and Kahakuloa, said he would leave the decision whether to hold a special session "in the hands of leadership."

Souki said he believed support to assist the Superferry exists in the Legislature, but he wasn't sure about how influential ferry opponents would be and whether lawmakers would be pressured to stay out of the debate.

"One thing's for sure, if we don't act, then the ferry's bye bye," he said.

West Maui Rep. Angus McKelvey said it would be a "troubling precedent" to allow the Superferry to operate without first doing an environmental impact statement.

If that were allowed, then other businesses also facing environmental challenges would want to operate first and study impacts later, he said.

"Chapter 343 would be rendered useless," McKelvey said, referring to the state law that requires environmental studies if state land or funds are involved in a project.

South Maui Rep. Joe Bertram III said he wasn't in favor of legislators taking the matter up in a special session, preferring instead to clarify state law on what state agencies can exempt from environmental reviews when the Legislature convenes in regular session early next year.

"The law has to be fixed so that wiggle room isn't there," he said. He said the law needs to be clear "what's exempted and what isn't."

Bertram said he sees "no desire" by state lawmakers to step into the Superferry controversy.

"It's the governor's thing," he said. "Why get involved in her administration's mistake?"

Bertram called holding a special session a "bugaboo" that would only perpetuate the controversy that has divided the community.

"It would just maintain this whole pressure cooker," he said. "We need to bring down the heat on this whole thing for a while. . . . We can't move forward with a fractured community."

English agreed with the ruling by 2nd Circuit Judge Joseph Cardoza requiring an environmental assessment before interisland ferry service continues.

"That is the law," he said. "It's a victory for the rule of law in Hawaii."

Rep. Mele Carroll said she believed the judge's ruling was being cheered by constituents of her district in East Maui, Molokai and Lanai.

"For me, the ruling shows we must follow the law," Carroll said.

Souki maintained that the Superferry should not be singled out for an environmental review. However, he said he respected Cardoza's decision and appreciated the judge's efforts to be fair and give both sides a chance to present their case during the last few weeks.

"Of course I'm not happy," Souki said. "I know it was difficult for the judge to make his decision."

Souki said he believed the environmental advocates opposed to the ferry are a minority in the community, citing three state-wide opinion polls that show widespread support for the service.

"I like the environment like everyone else, but I think this case was kind of extreme," Souki said.

English said he has not been opposed to establishing a ferry, pointing out that residents of his district, particularly those from Molokai and Lanai, depend on ferry service.

But he said it should be done "within reason" and "something that people can buy into . . . not presented as a fait accompli, which has been the hallmark of this administration."

At 4:30 p.m. today, House Democratic members are scheduled to meet in an emergency caucus to discuss the fallout of Cardoza's ruling and the possibility of holding a special session.

McKelvey said he would offer his own proposal during the caucus. It would allow the Superferry to ply waters between Kalaeloa and Sand Island to help ease traffic on Oahu while an environmental study is done for the Maui-to-Oahu ferry service.

"The Superferry at least is in operation, making money and paying the state back," he said. "I think we need to find a middle way here."

In a written statement, Mayor Charmaine Tavares said she agreed with Cardoza's ruling.

"This has been a difficult situation for our community and a long court process," she said. "I thank the court for its diligence and the public for maintaining its civility throughout the course of this contentious and significant issue. The environmental and economic concerns raised are all certainly important, and I believe it is warranted to address mitigation efforts."

If it is not able to operate, however, President John Garibaldi indicated during the lengthy court session that Superferry would consider relocating. If the Superferry leaves Hawaii in search of a friendlier port, other Hawaii harbor users would have to pay for $40 million spent by the state on ramps and barges at state ports for the Superferry – which the Superferry will be able to take to its next location.

If the Superferry fails, U.S. taxpayers could be responsible for loans backed up by a $140 million loan guarantee issued by the U.S. Maritime Administration for vessel construction.

The Hawaii Supreme Court stalled the Superferry in August when it ruled that state transportation officials shouldn't have exempted the Superferry in 2005 from an environmental assessment required for projects that use state money.

Even though there is no current legal impediment to the ferry service to Kauai, Superferry officials say they can't survive on Kauai trips alone and want all legal obstacles cleared before resuming service to both islands at once.

The Associated Press contributed to this story. Brian Perry can be reached at bperry@mauinews.com. Claudine San Nicolas at claudine@mauinews.com.

Copyright © 2005 The Maui News.

Original article URL: http://www.mauinews.com/news/2007/10/10/02Legis1010.html

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