Supreme Court: Act 2 ‘unconstitutional’

“Based on our analysis herein, we hold that Act 2 is unconstitutional as it is a special law in violation of Article XI, section 5 of the Hawaii Constitution.”
– Hawaii Supreme Court ruling, case number 29035, filed March 16, 2009

In a major victory for environmental advocates and other critics of Hawaii Superferry, the state Supreme Court ruled today that the law that allowed the vessel to operate without an environmental assessment was unconstitutional.

The law in question, Act 2, was passed during a special legislative session in November 2007 and quickly signed by Gov. Linda Lingle. Since then, the Superferry has been a magnet for criticism regarding both its day-to-day operations and the manner in which it was launched. (See “Superferry Progress Report” by Rob Parsons, above.)

The case being considered by the Supreme Court was an appeal from the circuit court brought by the Sierra Club, Maui Tomorrow and the Kahului Harbor coalition. Their central argument was that Act 2 was crafted specifically to allow the Superferry to operate without an EIS and was thus a violation of Article XI, section 5 of the Hawaii Constitution, which states: “[L]egislative power over the lands owned by or under the control of the state and its political subdivisions shall be exercised only by general laws.”

The Department of Transportation and Superferry officials argued that because Act 2 didn’t mention the Superferry by name but only dealt with a “large capacity ferry,” it was technically a “general law.” The Supreme Court didn’t buy it, and countered that “the possibility that a company other than Superferry would be able to exercise those same rights before they are extinguished is beyond remote.”

“It’s a great day,” said Maui Tomorrow director Irene Bowie, reacting to the news moments after the 112-page ruling landed in her hands. “I’m almost speechless.”

Karen Chun of the save Kahului Harbor Coalition wrote in an e-mail that supporters of the Superferry should blame the lawmakers and officials who forced it through prematurely. “Because the EIS was not done, we got a plan that was doomed to failure,” she wrote. “The [ruling] may have hastened the end of the Superferry, but its days were numbered anyway.”

Wailuku lawyer Lance Collins, who was not directly involved in the case, called the ruling “a huge victory for public interest cases,” because the court also ruled the attorneys for Sierra Club et al could recover their fees.

In a statement released hours after the ruling, Hawaii Superferry said it was “hugely disappointed with the Supreme Court’s decision” and announced it will “cease operations for the present” after a final round trip on March 19.

Quoted in the Honolulu Advertiser, Gov. Lingle called the Superferry’s plans to shut down “devastating” and reiterated her stance that she and the legislature “did the right thing” with regard to the vessel.

It’s still possible Gov. Lingle, Superferry officials and others with a political and financial dog in this fight will push back. But while the issue may not be completely settled—and while there may yet be choppy seas ahead—those who have fought against the Superferry for the past 18 months or more can take solace in the fact that they now have the strength of the high court behind them.

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