Tuesday, September 18, 2007

Three courses of action on Superferry

By Rep. Kirk Caldwell

(Note: The following was taken from Rep. Caldwell's speech today before the Honolulu Rotary which included a proposal for three courses of action on the Superferry dilemma: )

1. Before whatever ruling comes down from Judge Cardoza, the Governor, as the Chief Executive of the State of Hawaii, should bring all the parties together to determine if there is a set of actions for this situation which will allow for the ferry service to continue and for the appropriate, simultaneous environmental review. Right now, this problem lies squarely with the Executive Branch. To remove it from the Judicial Branch prior to Judge Cardoza's ruling causes major problems on multiple levels. The Governor's response during all this time is to say the legislature has to fix the problem. I say not, at least not now. The Governor, through the Attorney General, should come up with a framework that is acceptable to all parties, not threaten the protestors on Kauai at this point. My experience is that courts prefer the parties to work out their disagreement whenever and wherever possible. If a framework for an agreement can be reached, the parties can go to the judge and put it on the record. Otherwise, whatever party is perceived as the loser will appeal.

2. Once Judge Cardoza rules, if there is accord, the parties then come to the legislature with a plan for any action required. It would be wrong now in a special session to just change the law to fix the Supreme Court's decision as it specifically impacts the Superferry. And it would be wrong to just externally drop a solution from up on high that does not reflect the concerns of the community on a broader level. Let's not repeat this mistake a second time. Imagine the chaos that would ensue at the legislature. Without a strong plan, who knows where we would end up.

3. Regardless of what occurs in resolving the Superferry issues, we must review our EA and EIS statute so that neither the public or the project developers are penalized by the ambiguities of the law.

In conclusion, a wise and experienced leader knows when to step in. Now is the time for the Executive Branch, which is before the Judicial Branch, to craft a solution. It would be inappropriate for the legislature to weigh in at this time.

7 comments:

Doug said...

Is there a full transcript of Representative Caldwell's speech available?

See my response, here.

House Blog said...

May we email it to you?

Anonymous said...

It would be helpful if Rep. Caldwell would be a little less coy and explain just what "ambiguities" he believes exist in the law and how he would amend Chapter 343 to resolve them. It won't help the tone of the discussion at all if our politicians reach a compromise among THEMSELVES in back room meetings and then try to ram it down the public's throats. If he thinks something needs to be done, let him put a proposal out for public discussion so everyone, not just political insiders, have a chance to have input.

Doug said...

You may, but why not just post it here in the comments section? (because if you email it to me, I would post it on my blog anyway)

I'm sure others may want to read it, too.

sandwich said...

I agree with anonymous that there needs to be public input in the process. This will happen whether there's a special session or if the Legislature waits until the regular session, since public hearings will be required.

As for Caldwell's coyness, it's probably more out of a need to really look at what's wrong at this time. I don't think he fully knows yet, and I'm sure that over the next days, weeks or months, there will be plenty of people speaking up to help educate him and the rest of us on the issue.

For the most part, this situation is terra incognita. I think even the judges are unsure about what to do, which scares me the most.

House Blog said...

Here is the full text of the speech, which was also sent to Doug's site:

Honolulu Rotary Club 9/18/07
The Superferry is a fascinating case study of where we stand as a society in Hawaii today. First, I need to fully disclose that I am a strong proponent of the Superferry, both as a previous vice chair of the House Transportation committee, and now as Majority Leader of the State House.
The Superferry represents an integration and sophistication of the market, both in terms of travel (as a form of mass transit) for those most impacted by the cost of travel, and the shipping of product, mostly ag products, to the Honolulu market. It's about keeping the neighbor islands green and in ag.
But this is the first time that I've seen as issue pitting local against local and neighbor island vs. Honolulu, and many Hawaiian activists and haole new arrivals on the same side.
I completely empathize, as I think we all do, with the family we saw on tv, whose car was being pounded, and air let out of tires. This type of protest is unacceptable.
But, let me start by summarizing what I am going to discuss in more detail over the next 15 or 20 minutes. And I want to save time for your comments and questions.
There are at least three major elements to the Superferry controversy:
First, our commitment to sustainability – the full consequences of our actions from the standpoint of what these actions do for Hawaii and do to Hawaii. We live in a complex society. We are seldom able to satisfy everyone. But we need to understand the full impact of our actions, especially when public resources are being used.
Second, fairness to everyone. Timely information from government which is as accurate and universally communicated includes communicating the rules of the road to business early and fairly. Even if it is bad news, businesses deserve straight talk up front.
Third, public participation must come early, not late. This is a major element of the Supreme Court’s decision on the harbor improvement issue.
Sustainability
Sustainability means a lot of things to a lot of people. It has a habit of morphing itself to a given situation, but it applies in the case of the Superferry.
Consider the neighbor island resident’s dismay with uncontrolled growth. They feel it slice by slice. Degradation of nature, loss of neighbor island character, sacrificing of neighbor island quality of life, once lost is irreplaceable.
Rep. Joe Souki suggests this loss of control of what communities live for and stand for has created a social whipsaw that can’t be avoided. To quote Joe:
“The super ferry saga showed that as Hawaii continues to grow and develop, we have to really evaluate what's important to us. It is no longer as simple as environment vs. business, or progress vs. maintaining old ways. I doubt we'd have seen such acrimony and protectionism from some groups on the neighbor islands were it not for the explosive growth in population and tourism experienced in their communities and the side effects felt by residents. The past few weeks have demonstrated that there are many voices throughout Hawaii talking about our changing state. They deserve to be heard.”
The protesters may be small in numbers but they are touching a cord that reverberates. It's the fear of losing what little we have left that is real, and it must not be dismissed. Yet we cannot or should we stop all development. The best must be protected and where possible enhanced. And in a democracy such as ours discussion and input must be open to all people.
What is the real footprint of a project?
Secondary impacts are real and must be identified in the planning process. The reasonable lesson learned here is that concerns for the impact of the ferry on whale migration are legitimate. The superferry proposed steps to address this issue, but without full public discussion. The “secondary impacts” were identified by the project developer and addressed by the project developer, but as earnest as they may have been, it wasn’t good enough for a lot of people and the Supreme Court.
Whether there are other substantial adverse environmental impacts is not clear to me. Young Brothers and their fore bearers have been moving equipment, animals and produce between the islands since the monarchy days.
Fairness
A lot of the tv viewing public, watching demonstrators in the harbors and considering what seemed to be a last minute Supreme Court order, ask themselves if it was fair to the Hawaii Superferry project.
This is valid concern.
The other side of this is, was the exemption from the environmental assessment fair to all parties, including the Superferry management? Everyone with authority said okay; the DOT, the Feds, the Circuit Court, and to some extent the Lege in funding the improvements.
Although it would have been highly unusual, the state legislature could have intervened last session and mandated an EIS, not an EA, while allowing the ferry to sail, but we didn’t.
It was the right decision on the basis of policy. The legislature should not act piecemeal. We are not equipped to determine if an EA or EIS is required on a case by case basis. Nor is it our duty as a legislature.
The exemption seemed vital to “go or no-go” for the project, because federal loan guarantees were predicated on the exemption. The question must be asked: did this pressure the DOT in exempting the ferry from an EA?
In hindsight, real fairness would have been to make it clear from the outset that the safe course and the right course was an EA, either mandated by the state or volunteered by the Superferry management.
Public participation
Beyond the complicated legal debate about secondary impacts, the Supreme Court weighed in heavily on the importance of public participation. It found that the state’s decision that an EA was unnecessary cut people out.
Let me share with you Caldwell’s Rule #1 on project planning:
As projects get closer to fruition, opposition grows, almost exponentially. What seems doable early and in the abstract, gets tougher and tougher as it gets closer to reality. I am sure the state administration saw these public challenges coming.
So the smart thing to do, and the right thing to do, was to conduct the EA early and get the public issues and viewpoints on the table from the outset.
Conclusions
There are some hard lessons learned here that we must fully absorb if we are to move forward and not repeat the same mistakes.
(1) People’s feelings about where they live and their loss of control of their own environment has really ramped up, whether they be relative new comers or pre-Cook descendants of native Hawaiians. I very much understand where the neighbor island people are coming from on this. If we were in their shoes, a lot of us would be fighting this project too. Peoples’ attitudes have changed. They have hardened, and we have to deal with it, not fight it.
(2) There should have been an EA for this project, not to stop it but to ensure the planning was open and the project addressed all the major issues reasonably as raised by the stakeholders and the community as a whole.
(3)This is the wrong time for finger-pointing. State departments, the office of environmental quality control, the governor and AG, the legislature and the feds all had a bite at this apple. It's time for us to put our heads together to see what improvements can be made, be it in the HEPA law itself or in its administration.
(4)I don’t think it’s right for the legislature to call a special session and try to “fix” this particular problem now. The Supreme Court has spoken and we should not interfere with the court proceedings before Judge Cardoza rules. This is the beauty of our 230 year old American experiment in democracy. Two branches of government weighed in on the supper ferry. Concerned citizens from the neighbor islands and elsewhere believed that we did not follow the law. And they got the third branch, in this case the highest court in the state, to agree with them. This is how things work in our country. It’s not broken. The system works, although messily sometimes.
(5) The supreme’s court decision can have far reaching impact. Molokai ranch water decision. Cruise ships. New air carriers entering the market. Private jets. Inter island tug and barge service. And PASHA.
In conclusion I propose the following three courses of action:
First, before whatever ruling comes from Judge Cardoza, the governor, as the chief executive of the State of Hawaii, should bring all the parties together - Superferry management and the other stakeholders - to determine if there is a set of actions for this situation which will allow for the ferry service to continue and for the appropriate, simultaneous environmental review. This is what leaders do.
Right now this problem lies squarely with the executive branch. To remove it from the judicial branch prior to Judge Cardoza's ruling causes major problems on mutiple levels. The Supreme Court entered its one and one-half page order on August 23rd. Justice Duffy, Governor Lingle’s only appointee to the Supreme Court, came down with a unanimous 104 page decision on August 31st. Since then the parties have been fighting it out in court on Kauai and Maui. Judge Cardoza is expected to rule by Friday if not earlier.
Almost four weeks have passed since the Supreme Court’s initial order. A window of opportunity available to the governor is rapidly closing. The governor’s response during all this time is to say the legislature has to fix the problem. I say not. At least not now. The governor through the AG and deputy AG should come up with a framework that is acceptable to all parties, to come together to work things out, not threaten the protestors on Kauai at this point.
My experience is that courts prefer the parties to work out their disagreement whenever and wherever possible. Courts will choose if they are forced to choose as the Supreme Court did.
If a frame work for an agreement can be reached, the parties can go to Judge Cardoza and put it on the record. Otherwise whatever party is perceived as the loser will appeal. Our chief executive has an opportunity to solve the ferry problem while it is still with the circuit court. Let’s hope she does not miss the boat.
Second, once Judge Cardoza rules, if there is accord, then come to the legislature with a plan for any action required. It would be wrong now in a special session to just change the law to fix the Supreme Court's decision as it specifically impacts the Superferry.
And it would be wrong to just externally drop a solution from up on high that does not reflect the concerns of the community on a broader level. Let's not repeat this mistake a second time. Can you imagine the chaos that would ensue at the legislature? Without a strong plan before us, who knows where we would end up?
Third, regardless of what occurs in resolving Superferry issues, we must review our EA and EIS statute so that neither the public nor the project developers are penalized by the ambiguities of law. Very specifically, we need to determine if the law can be improved so that information is placed on the table for all parties to review and take into consideration at the outset of project planning.
In final, a wise leader, an experienced leader, knows when to step in. Now is the time for the Executive Branch, which is before the Judicial Branch, to craft a solution. It would be inappropriate for the legislature to weigh in at this time.
Thank you.

Doug said...

Mahalo for posting the full text!