Department of Transportation was wrong to exempt itself from conducting an environmental review of Hawaii Superferry, the Hawaii Supreme Court says in a 104-page opinion issued Friday.
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WAILUKU – The state Department of Transportation was wrong to exempt itself from conducting an environmental review of Hawaii Superferry, the Hawaii Supreme Court says in a 104-page opinion issued Friday. “It is not disputed that the harbor improvements – which propose the use of state funds and state lands – are a triggering ’action’ under the Hawaii Environmental Protection Act; the only question is whether an exemption applied,” says the opinion written by Associate Justice James Duffy and signed by the four other Supreme Court justices. The justices acknowledge “it is not the province of this court to substitute its judgment for that of an agency within the executive branch of government,” but they said “the flip side of this caution, however, is that this court must ensure that the agency has taken a ’hard look’ at environmental factors. “The record in this case shows that DOT did not consider whether its facilitation of the Hawaii Superferry project will probably have minimal or no significant impacts, both primary and secondary, on the environment,” the judges say. “Therefore, based on the record, we can only conclude that DOT’s determination that the improvements to Kahului Harbor are exempt from the requirements of (the state environmental review law) was erroneous as a matter of law.” The judges concluded that because the state’s exemption of the project was invalid, an environmental assessment is required. Such an environmental review could take months if not years. “The exemption was erroneously granted as DOT considered only the physical improvements to Kahului Harbor in isolation and did not consider the secondary impacts on the environment that may result from the use of the Hawaii Superferry in conjunction with harbor improvements.” The opinion explains the court’s Aug. 23 decision, which came hours after hearing oral arguments, to reverse a July 2005 determination by 2nd Circuit Judge Joseph Cardoza. Cardoza had ruled that Maui environmental groups lacked legal standing to challenge the Superferry’s planned interisland service, and he found that state transportation officials complied with state law in planning harbor improvements to accommodate the Superferry. But the Supreme Court justices disagreed, finding that Superferry opponents did have legal standing and that transportation officials’ determination that the improvements to Kahului Harbor were exempt from Hawaii’s environmental review law was “erroneous as a matter of law.” On Monday, the second day of an early start for Superferry interisland service, Cardoza issued a temporary restraining order, prohibiting the Superferry from operating at Kahului Harbor, although it did not stop the ferry from returning passengers to their home ports. The next chapter in the Superferry saga will be back in 2nd Circuit Court on Thursday when Cardoza will consider a motion to bar the Superferry from operating at Kahului Harbor until all environmental studies are completed. On Aug. 26, the 350-foot, double-hulled Alakai sailed with its first paying customers, who paid special inaugural $5 fares from Oahu to Maui. More than 500 people took advantage of the special fares on the Superferry’s first day of service. But following the temporary restraining order, which halted the Superferry service, dozens of people got their vehicles stranded on Maui at a lot adjacent to the intersection of Kaahumanu Avenue and Wharf Street. Cardoza’s ruling did not affect the ferry’s planned trips between Oahu and Kauai, but protesters on Kauai blocked the entry of the $85 million vessel into Nawiliwili Harbor, eventually forcing it back to Oahu. Ferry officials have since agreed to suspend trips to Kauai. In providing background for the court’s opinion, the justices cited details about the Superferry’s July 22, 2004, application for a “certificate of public convenience and necessity” before the Public Utilities Commission. The application described two ferries eventually operating between Oahu, Maui, Kauai and the Big Island. Each high-speed, roll-on/roll-off ferry would be capable of carrying up to 866 passengers and 282 cars. And, to accommodate the ferry service, state transportation officials concluded that necessary improvements to Kahului Harbor would include construction of a removable barge moored at Pier 2 as a platform for loading and unloading passengers and vehicles, the provision of utilities to the pier, security fencing, pavement striping, the placement of boarding gangway ramps and the installation of tents at inspection points or customer waiting areas. State officials estimated ferry-related improvements would cost $40 million at the four harbors used by the ferry. A state agency may declare a project exempt from the preparation of an environmental assessment if it obtains the advice of “other outside agencies or individuals having jurisdiction or expertise as to the propriety of the exemption,” according to Hawaii administrative rules. But the exemption cannot be applied if “the cumulative impact of planned successive actions in the same place, over time, is significant, or when an action that is normally insignificant in its impact on the environment may be significant in a particularly sensitive environment.” When no exemption applies and one of the triggers of the environmental law is met (the use of state lands and funds in the case of Kahului Harbor), then an environmental review begins with the development of a draft environmental assessment. That informational document evaluates possible environmental effects of a project, providing a detailed description of it and its direct, indirect and cumulative impacts as well as considering project alternatives and describing measures to minimize potential impacts. Then, after a 30-day period for public review and comment, there’s a determination of whether the project poses any “significant” environmental impacts. If so, a more detailed environmental impact statement is prepared. In the Supreme Court opinion, the justices note that before state transportation officials determined the ferry-related harbor improvements were exempt from the state’s environmental review law, they consulted with the state Office of Environmental Quality Control on whether it would be appropriate to provide an exemption for the proposed improvements. In a Nov. 15, 2004, letter to Genevieve Salmonson of the OEQC, the transportation department’s Barry Fukunaga wrote to “request confirmation from (the OEQC) that the intended improvements fall within the approved exemption classes established for the state Department of Transportation.” And, in her Nov. 23, 2004, reply under the subject heading of “Hawaii Superferry Improvements,” Salmonson wrote that “OEQC believes that the proposed improvements fall within the scope of work described in the Department of Transportation’s approved exemption list.” Her letter went on to say it was her office’s “understanding” that actions at Kahului Harbor would include the demolition of a portion of one side of the tip of Pier 2 to create a notch in the pier. And Salmonson’s letter continued to say the actions fell under certain exemptions. (Those included installation of “security and safety equipment” and the “alteration or addition of improvements . . . which are incidental to existing harbor and boat ramp operations.”) Salmonson concluded her letter by saying, “accordingly, we believe that the Department of Transportation has authority to declare the actions described above as exempt from the requirement to prepare an environmental assessment.” The justices’ opinion says state transportation officials also sent identical letters to the Maui County departments of Planning and Public Works and Waste Management. The state Department of Transportation later ruled that: “We have determined that the operation of Hawaii Superferry at Kahului Harbor conforms with the intended use and purpose of the harbor and meets conditions that permit exemption from environmental review at such location based on the method of operation planned. The ferry activity at Kahului Harbor will use equipment appropriate for a harbor, include only minor facilities and will be conducted at an existing pier facility that is consistent with the purpose and reason for which it was originally developed.” The department also noted that: “The installation and result of the minor improvements noted will not produce or create any adverse air quality, noise or water quality impact. All changes, modifications, additions or adjustments remain compatible with the uses established for the harbor and its piers.” The justices’ opinion pointed out in a footnote that “the exemption determinations do not disclose the size or scope of the Hawaii Superferry project.” The Supreme Court found state transportation officials didn’t go far enough in considering potentially adverse environmental impacts. The officials’ exemption letter “does not consider whether Superferry operation independent of the harbor will have any significant effect on the environment,” the judges say. “Rather, DOT appears to studiously restrict its consideration of environmental impact to the physical harbor improvements themselves. “Although DOT does say that ’the installation and result of minor improvements noted will not produce or create any adverse air quality, noise or water quality impact,’ which could imply a reference to the Superferry itself, as the ’result’ of the harbor improvements, this statement is oblique and does not indicate that secondary impacts were considered.” Brian Perry can be reached at bperry@mauinews.com. Aid available for stranded cars HONOLULU – Young Brothers Ltd. is assisting Hawaii Superferry customers who have had their cars stranded following the halt of Superferry operations last week. On Sunday, approximately 70 vehicles remained stranded in the Superferry lot adjacent to the intersection of Kaahumanu Avenue and Wharf Street. With barge service to all ports throughout the state, Young Brothers has been able to move vehicles between the islands. Those who need assistance can call (808) 543-9311 and select Option 1 for assistance. The barge schedule can be found at: www. htbyb.com and by clicking on the words “Schedule and Maps” on the left side of the home page then “Sailing Schedule, All Ports.” |
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Copyright © 2007 The Maui News. |
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reprinted courtesy Maui News 9/2/07
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