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Saturday, October 29, 2011
Superferry: Honolulu Lawyer Dissects Civil Beat’s Latest “Fact Check” Debacle
By Robert Thomas @ 10:39 AM :: 3971 Views :: Energy, Environment

Was Lingle "False" When She Said "Nothing Was Done Wrong with Superferry"?

by Robert Thomas, InverseCondemnation.com

You remember the Hawaii Superferry, don't you? In case your memory doesn't go back that far, here are our posts on the Hawaii Supreme Court's first opinion, and here are our thoughts on the second. What brings up this case now is then-Governor (and present U.S. Senate candidate) Linda Lingle's recent statement, quoted by Honolulu Civil Beat:

"I want to be clear on this point and on the record. And I want you to share this with everybody you talk to: Remember that nothing was done wrong with Superferry — nothing," Lingle said. "Let me elaborate. Some people talk about an EIS when they talk about the Superferry. There was never an EIS required of any interisland vessel. Not before and not since, that I'm aware of."

Civil Beat followed up with a "fact check," asking whether her statements were true or not. CB concluded:

Lingle said "nothing was done wrong with the Superferry." That's false. The Hawaii Supreme Court twice invalidated actions taken by the state related to the Superferry. First, in 2007, it ruled that the state should not have given the Superferry an exemption to the environmental review process. The second time came in 2009 when the court ruled that the "special law" — approved by the Legislature and signed into law by Lingle — was unconstitutional. Lingle may disagree with the court, but it's the court that gets to decide what's right and wrong under the law, not a governor who wants to exert executive authority.

The piece also concluded:

Technically speaking, Lingle left herself an out, by saying "there was never an EIS required of any interisland vessel" that she's "aware of." But her statement is misleading at best and also inaccurate. An EIS wasn't required of the Superferry. It was required of the harbor improvements. And other harbor improvements related to ferries between Maui, Lanai and Molokai were required to undergo an Environmental Impact Statement. It should be remembered that Lingle knows Maui well. She was its mayor, after all.

So, do Lingle's claims hold up?

Attempting to "fact check" an opinion is a fool's errand. And Lingle's core assertion that the administration did nothing "wrong" is surely an opinion. If reasonable minds could differ on whether the State took the "wrong" course -- which they plainly could, as evidenced by the circuit judge's rulings in the State's favor -- then what Lingle was ultimately stating (that she believes that she took the correct course and the Hawaii Supreme Court got it wrong), is as "true" as a contrary opinion is "false."

It can't be claimed that someone's judgment regarding a particular course of action when the law was unsettled is "false" simply because the supreme court eventually ruled that the action should have been accomplished another way, or could not be accomplished at all. That is not a realistic view of the role of the courts or the other branches: while judges may have the last say in many cases about what is legal and what is not, it is not accurate to state that "it's the court that gets to decide what's right and wrong under the law, and not a governor who wants to assert executive authority." While courts play a major role in making law and ruling in cases, and in many cases have the last word about what the law is, they don't have the only word, and the other two branches of government have the independent responsibility to make their own decisions about what they believe is "right and wrong under the law." This is especially true of the executive, who is charged with implementing and interpreting laws on a daily basis when he or she decides how to execute the law.

And to suggest that the courts, particularly courts of last resort such as the Hawaii Supreme Court, do not make or change the law when they interpret and apply it, is simply wrong. Of course courts "change the law," and it would be fair to say the Hawaii Supreme Court did change the law in this case in the sense that the result it reached in interpreting the EIS statute was not so beyond dispute that reasonable people could not disagree beforehand. Indeed, there is a strong case to be made that the Court did get it wrong, and there is little room to argue that the law was so clear that the governor and legislature acted in bad faith.

Finally, the legal issue in the case was indeed limited to the harbor improvements and was not a claim that the ferry itself needed an EA/EIS. But I'd reckon that in the mind of most observers, it was a challenge to the ferry itself. That's how these things work: those who object to private projects often look for the Chapter 343 "hook" that will trigger the chapter's requirements (use of state lands, use of state money, etc.; this has resulted in some very aggressive interpretations by the courts about what it means to "use" state lands, for example). If there was any doubt as to the ultimate goal of the plaintiffs to stop the ferry and not just the harbor improvements, note that both the plaintiffs' theory, and the court's opinions, were based on the impacts the ferry might have, not simply the possible environmental impacts that might be brought about only from minor changes to the Kahului Harbor.

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