HI Superferry: A Brief History of How We Got to This Point

From: Hawaii State Senator Gary L. Hooser
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Monday, October 29, 2007 1:35PM -
My floor remarks presented on Superferry 3rd reading vote October 29, 2007
Remarks in opposition to SB1SD1 Re: Hawaii Superferry Special Session

Madame President, I rise in opposition to SB1, SD1.Before I begin my remarks Madame President I would like to offer my thanks to you, to the Chair of the Judiciary Committee and to all of the members who took the time to attend the neighbor island community briefings on this issue, and to truly listen to the people who came forward to share their mana‘o on this important issue.Thank you especially Madame President for showing true statewide leadership by not only agreeing to hold hearings on each of the neighbor islands but in fact insisting that we do so, and then taking that extra time attending them yourself. Madame President, as all of us here today know, I speak today in opposition to SB1 not as the Senate Majority Leader but simply as the Senator who represents District #7 and the people of Kaua‘i and Ni’ihau.And Madame President, I will say upfront and directly…I know full well that people in my district as well as people throughout the state…are divided on this issue. Some believe strongly that it is right, fair and just that we amend the law as is being proposed today and others believe equally as strongly that to do what is being proposed is wrong, terribly unjust and are appalled that we are even considering the Bill now before us.There has been much talk over these past few weeks about how the majority of the people in our State want the Superferry. I do not doubt one bit that this true and I also believe that if done properly, an inter-island ferry system can be good for Hawaii.But I also believe that most people would not be so eager to offer their support if they knew it had the potential to irreparably harm our environment, as was the conclusion of Maui Judge Cardoza. But this question was not asked in the polls that were conducted. Neither was the question asked: Do you believe the Hawaii Superferry should comply with all State and federal laws? If it was asked, I suspect an overwhelming majority would say yes. But yet the Superferry is here today asking us to change the law, just for them.And this is one of the most fundamental points upon which my opposition is based. We are here today to change the law to benefit one particular business, which as we all know, is the Hawaii Superferry. Yes, the Bill does not name a specific business but only refers to “a large capacity ferry vessel” …but the entire reason we are here today in this special session, in my singular and humble opinion, is to save the Hawaii Superferry. And I suspect a majority of people in the room today are ok with that. Many perhaps feel that because of the history, background and significance of this particular business…that it is ok to pass this Bill designed to help this one particular business. I respect that position, however, I personally believe that it is not ok, and in fact believe that the legislation before us clearly violates at the very minimum, both the spirit and the intent of our State constitution.Some will argue I am sure that this is an extraordinary situation that demands extraordinary measures…and I respect that view but I just cannot support it.As most of you know, I was an early supporter of the Hawaii Superferry. In 2004 it seemed like a great idea and I signed and supported like most in the room a Resolution to that effect. I was told by proponents at the time, that the service would provide a low cost inter-island transportation alternative to our residents, that it was environmentally friendly and it would be a boon to our economy…so I said yes…sounds good to me…let’s expedite the permits and get this thing going. Needless to say, I was not aware that they were going to ask the State to provide $40 million in harbor improvements nor was I aware that they intended to bypass the environmental review process. Expedite means hurry up the paper shuffling, it does not mean cut corners, by-pass protections, or make an end run around the law.And certainly expedite does not mean exempt.For the record, I still believe that expanding inter-island travel options including an inter-island ferry operation is probably a good idea…but it needs to be done right, and it needs to follow the law, not make the law. Perhaps…if the Hawaii Superferry was just an unwitting victim of an inept decision by State government I might feel differently. Perhaps if the “mistaken exemption” which created this whole ungodly mess was simply an inadvertent error that no one could have possibly anticipated…perhaps the entire community might feel differently.But as we all know this is not the case. The Hawaii Superferry operation is controlled by very wealthy and extremely politically connected individuals. The primary principal is the former Secretary of the Navy, Mr. John Lehman who served under President Ronald Reagan, is a close friend of Henry Kissenger, an appointee to the 9/11 Commission and is closely associated with the top of the top in military and national security circles of influence. Mr. Lehmans investment group has placed approximately $80 million dollars into this venture and they can easily afford the best lawyers in town…perhaps the best lawyers in the world.So no…the Hawaii Superferry is not an unwitting, naive and innocent victim in this situation.The Hawaii Superferry, the DOT and the Lingle administration have known this outcome was a possibility since day one. And they have worked “hand in glove” since day one to push this project through.The political process according to public records began in 2003 when the Superferry operators began briefing the Lingle administration and various community groups. According to recent testimony, Bob Awana, the former Chief of Staff to Governor Lingle was personally involved in consulting on the process and helped draft the operating agreement between Hawaii Superferry and the State.So how much money does it require for a project to be able to negotiate directly with the Governor's office?In 2004, the PUC began extensive public hearings with strong public sentiment pointing out the need for an environmental review. HSF management and the DOT had to have known at this point that the lack of an EA or EIS would likely pose a problem. But rather than slowing down and doing it right…they chose to plow ahead.In 2005 the Kaua'i County Council, the Hawaii County Council and the Maui County Council all passed Resolutions calling for the requirement of an Environmental Impact Statement. The DOT and the Hawaii Superferry adamantly opposed each of these Resolutions.In 2005 Senate Bill 1785 also demanding an EIS be conducted was introduced and passed out of the Senate Energy and Environment Committee but was defeated in the Transportation committee after intense opposition from both the State DOT and the Hawaii Superferry.If the State and the Hawaii Superferry would have conceded the issue in 2004 or even 2005, the EIS would likely have been completed by now and the Superferry service would be well underway. But as we all know they did not and chose instead to keep their heads down and just push on through, in spite of growing community and legislative opposition to their position.The lawsuits started in 2005, and though the Maui court denied the Plaintifs case, both the Hawaii Superferry and the DOT were well aware that the matter was being appealed to the Hawaii Supreme Court.During the 2005 and 2006 legislative sessions, further attempts were made in the Senate via budget proviso’s to force the owners of the HSF to be more forthcoming in their dealings with the neighbor-island communities who were expressing increasing concern about potential impacts.In 2006, a community group, People for the Preservation of Kaua'i attempted to present Governor Lingle with a petition containing some 6,000 signatures requesting an EIS and the governor’s office refused to even receive the petition.Again, if the Hawaii Superferry and the DOT had at this point decided to just do things the right way… all of this mess, we find ourselves in today…could have been avoided.Then, in Feb. 2007, the Environmental Council, a group of citizen volunteers appointed by the Governor and responsible for offering input and advice on the environmental review process…again…these are volunteers appointed by the Governor whose job it is to offer input and advice on environmental review matters…including the exemption process. This group issued a 9 votes to 1 decision that stated on no uncertain terms that the DOT had made a mistake when granting the environmental review exemption. Once again both the State’s own attorneys and the Superferry attorneys fought hard in opposition.For three years running many state legislators, County councils and private citizens attempted to convince the DOT and the Hawaii Superferry to undergo an EIS process and finally during the 2007 legislative session we in the Senate passed SB1276SD2, a compromise solution that would have required an EIS while allowing the HSF to operate. Once again…arm and arm and in lockstep… the DOT and the HSF vehemently opposed this requirement…thumbed their noses at the Senate and refused the offer of compromise.While some might suggest that the language of SB1276 needed further clarification…one thing that was very clear…and was made in numerous public statements, by numerous people including myself… right here on the floor of the Senate…What was imminently clear was the intent…and obviously as is routine in the legislature, language corrections and amendments if needed, could have easily been made in the House.Once again, if the DOT and the HSF had accepted our compromise, we would not be where we are today.All along the way, the State administration and the Hawaii Superferry have fought and resisted the requirement for proper environmental review of this project. They have been together…locked together, arm in arm, like two peas in a pod….every single step of the way.So no. The Hawaii Superferry is not an innocent and unwitting victim deserving of special dispensation in the form of a special session and this pending legislative bailout. They are highly influential, sophisticated, and very wealthy business operators who knowingly and willingly worked closely with the Lingle Administration in an effort to avoid…at all costs it seems…to avoid and circumvent the proper and legally required environmental review process.The Hawaii Supreme court ruled unanimously, 6 to 0, that the DOT erred and should not have exempted the project.The Hawaii Superferry knew full well what they were doing, they took a calculated risk and on August 23 they rolled the dice and lost. Blaming the protestors for this debacle, and attempting to fault those in the community who believe in protecting the environment is nothing short than pathetic.No doubt, we will hear repeated here today the mantra of how this is all the result of “a small vocal minority”. That mantra my friends is simply shibai.For the record it was the egregious mistake made by the DOT and confirmed by a decision of the Hawaii Supreme Court which ultimately led to the stop of the Hawaii Superferry - not some mythical and all powerful “small vocal minority group”. The truth is much simpler than that:The Lingle Administration working hand in glove with the Hawaii Superferry owners…made a bad decision and have been called on it by the highest court in our State.In addition to being unwilling to support special interest legislation on principal…I also believe given the history of this particular situation, a bail out of this nature is totally unwarranted…and quite frankly they don't deserve it.Again for those who believe this is the only way we can fix this sorry state of affairs…I respect your opinion, I do not question your integrity, your principals nor your intent but I do disagree. I believe that good people, people of good will and intelligence can agree to disagree. I believe that good people can look at the same set of facts and circumstances and come to different conclusions.However in my heart, I also believe that in this particular situation we are poised on the edge of making a grave error. If passed, this legislation…in my singular and humble opinion…has the potential to seriously undermine our existing environmental laws and establishes a new standard that is sure to encourage other businesses follow.Worst of all… is the message this decision sends to those in our community who believe that playing by the rules is important. What do we tell those folks on Maui who fought so hard in court, against overwhelming odds and the tremendous combined legal resources provided by the State and the Hawaii Superferry? What do we tell those in my district whose community and political awareness has been incredibly galvanized by this issue? What do we tell our youth, young adults in their 20’s and 30’s who up until now most would have considered “disenfranchised”…young adults who up until this point have had little faith in government…until that is the Hawaii Supreme Court ruled in their favor…proving to them…at least for a little while anyway.. that the “fix was not in” and that the system did in fact “work”.What do we tell those folks who played by the rules, fought against overwhelming odds, finally were awarded a victory… and then we come along and change the rules…and yank that victory away before the ink is even dry on the paper it was written on.Yes…technically it is true that the Court judgment stopping the HSF from sailing to Maui does not apply to Kaua'i and there is no legal impediment at this time preventing the HSF from going to Nawiliwili…tomorrow if they like. But to most in my community…this legal technicality does not dampen nor detract from the truth…and the truth is that the DOT should not have granted the exemption and the Hawaii Superferry should not have been allowed to sail prior to conducting the required environmental review.So what now? It is inevitable that this Bill or some version of it will pass…and the Hawaii Superferry will sail soon once again…without the EIS but yes with some conditions that should help…and I thank my colleagues for the significant effort it took to amend this legislation.This issue has drained our spirit and divided our community. It is time now for all of us to move on.Before I close I have two requests to make…one of my community and one of the Hawaii Superferry. I am asking those in my community and on Maui and elsewhere…those who may be outraged at the legislative action that is taken this week … please know that I share your outrage, your anger and your disappointment. I agree, the system has let us down. But I ask you to please…please take a deep breath and think about the future before acting in haste. Jumping in the water, putting yourself and your friends in physical danger, risking arrest…it is just not worth it. Protest and boycott if you must…but please do so peacefully and within the bounds of the law. Better yet, I urge you to focus your positive energy and join with others of like mind to help change and improve the system.To the owners of the Hawaii Superferry I ask that you also help heal the rifts and calm the tempers by participating in and embracing a community centered Hooponopono process of conflict resolution, prior to launching service. I urge you to accept the assistance and participation of an independent third party facilitator who might gather community leaders together for positive collaborative dialogue, without the presence of government.Put off your launch date for now and work instead to help mend the wounds that have been created in our communities and around our state.Madam President, colleagues and friends…I thank you for your indulgence in allowing me extended time to share with you my deepest thoughts on this issue…this issue which has taken so much from each and every one of us.As you know already, my vote will be NO…but as I hope you also understand, I do respect and honor your decision and your vote, whatever it may be on this issue. Thank you. gh