Last year, instead of enacting a law stating that the Supreme Court was wrong, the Legislature adopted special legislation exempting the Superferry pending completion of an environmental impact statement. The Supreme Court’s recent decision correctly struck down that exemption as violating the Hawaii constitutional prohibition against legislative special treatment for special interests.
The governor and Legislature were then handed a second opportunity to make the law pono by saying what everyone believed. The Legislature could enact simple language, such as the following which I recommended to the legislative leadership in March 2009, making clear that our environmental laws do not extend to "secondary" impacts:
"Significant effect" does not include or require consideration of “secondary impacts” on the environment that may result from government action. This latter provision is retroactive to enactment of this chapter.
By doing so, the law would state what everyone always believed it meant and the Superferry would have been allowed to continue providing essential transportation to Hawaii's citizens and competition to interisland airlines.