INDEX - DEVELOPMENT
SUBJECT: SUPERFERREY PLANNING
SOURCE: ANDY PARX POSTED: 25 OCTOBER 2007 - 7:30pm HST
PNN News Analysis: Making a federal case out of it.
by Andy Parx on 25 October 2007 - Opponents may be making a federal case of the idea the Legislature can just pass a state law to let the Hawai`i Superferry (HSF) sail without an EIS and other permitting.Any law the State could pass during it’s special session would violate no less than four major national environemenal acts. But Harbor’s Chief Mike Formby has failed to even provide any paperwork or evidence of any specific exemptions nor has he claimed any exist. And he has flatly refused to answer any question on the SF and Federal law.There’s an acronymic array of Congressional dictates that Governor Linda Lingle has already violated even before the legislature conspired to outrageously exacerbate the suspension of the rule of law- NEPA, CZMA, MMPA, ESA....Seems the Feds control coastal zones in this country and have quite a system for doing it. It’s called the Coastal Zone Management Act. (CZMA). Exemptions are rare other than for the military and even they must be sponsored by a federal agency and file for an exemption with a written project.The neither the state nor the Superferry have one of these exemptions.Another is the National Environmental Protection Act which requires environmental impact studies too And it can’t be changed by a state law.So how did the state do this?- it seems like a lot of these acts would require states to write their laws to comply. As a matter of fact they do.The CZMA – the trickiest thicket of State convolutions and contortions- has a specific Federal sign- off system for individual state laws which are required to determine the nuts and bolts of regulation and permitting. .Hawai`i State law- HRS 205- dictates a specific process for obtaining Special Management Area (SMA) Permits, to be issued by the counties. Most shoreline activists consider it a great law and, of course it complies with the CZMA.HRS 205 say the counties issue SMA permits. Not unexpectedly, the Kauai Planning Department has confirmed there is no permitting paperwork for the SF and no exemptions are recordedOK, the pea was in the Federal shell and it moved to the state shell which gave it to the county shell. Didja see that?But unbeknownst to all but the most observant gamer, the Legislature changed State’s shell. While no one was looking a piece of legislation called HRS 266-2 hit state law books.That measure gives the state power of “approval” over “county permitting” when it comes to “harbors”.So let’s see- where exactly is that pea? The State takes the Fed’s environmental protection pea and loans it to the county which doesn’t really have it because the state can magically “disappear” the pea without shifting it back to the Feds or actually having it themselves if the Feds were to ask for it backPoof- no matter which shell you pick, guess what? No pea... kinda of like quantum theory. Better luck next time, Wendell.Maybe youze’ll have better luck wit’ that “Red Queen” game down the block on toidy-toid street.The Kaua`i Planning Department will not return any more calls or discuss anything to do with local Superferry permitting matters. The county’s only response to a flurry of calls over a week’s span was “266-2” and the name and email address for Formby. Formby also cites 266-2 and has refused to discuss any federal implications or provide federal exceptions for the state or state exemptions for the counties.It may be that it’s because the CZMA is quite clear- there are few if any exemptions and none for private enterprises or even states. They must be applied for by federal agencies and those agencies even have to go through a similar process including public hearings and other examinations of data.But though the CZMA violations are the most complicated the others are relatively simple. It is unfathomable with all the legal defenses- and all the people who base their opposition to the ferry on misconduct and malfeasance by the HSf and the state- no one has sought a Federal injunction, especially since the state has been found in violation of 343- the law written to comply with the NEPA NEPA? Oh- it’s the National Environmental Policy Act of 1969, http://www.nepa.gov/nepa/regs/nepa/nepaeqia.htm the bible of the EIS and it’s processes It sets out the basic laws states must follow in order comply with Federal law. It says that all state EIS laws are invalid without Federal approval through a detailed review process of state EIS laws.Federal courts have constituently and famously opined that states must follow the Federal standard if a state legislature or court doesn’t follow the NEPA..It’s one of the most likely reasons for the Hawai`i Supreme Count ruling as it did. The state laws they were imposing- HRS 343, 205 and others- were based on federal laws that the State legislature can’t change without Federal approvalThe Marine Mammal Protection Act (MMA) requires those who even plan on approaching marine mammals get permits to do so. To touch one is the same as killing one as far as penalties if you don’t have a permit to “take” them. They don’t even give those to all the scientists that apply.There is no such permit.And the MMA parent law, the Endangered Species Act (ESA), requires an EIS if there are threats to them and also require permission before action.No one in Hawai`i government has provided any evidence of any such application much less permits or actual approval regarding any compliance with the four laws listed here and all those asked have refused to discuss the matter despite repeated PNN attempts to secure them.[Although there is reportedly $10,000 sitting around to pay lawyers in the People for the Preservation of Kaua`i coffers, PKK honcho Rich Hoepner has refused to speak with PNN on this and a number of matters.PNN has not received any communication with any attorney currently involved with the case regarding the possibility of filing a Federal case or obtaining an injunction to prevent the legislature from illegally changing the law, as it plans to do next week according to legislators themselves and all media reports.]HRS 205 http://www.capitol.hawaii.gov/hrscurrent/Vol04_Ch0201-0257/HRS0205/HRS_0205-.htm
HRS 343 http://www.capitol.hawaii.gov/hrscurrent/Vol06_Ch0321-0344/hrs0343/hrs_0343-.htm
HRS 266-2 http://www.capitol.hawaii.gov/hrscurrent/Vol05_Ch0261-0319/HRS0266/HRS_0266-0002.HTM
NEPA of 1969 http://www.nepa.gov/nepa/regs/nepa/nepaeqia.htm
MMPA of 1972 http://www.nmfs.noaa.gov/pr/laws/mmpa/
Hawaii Supreme Court ruling:
Maui Judge Cardoza’s ruling:
View the Order Granting Plaintiffs' Motion to Enforce Judgment Requiring Environmental Assessment by Prohibiting Implementation of Hawaii Superferry Project, for Temporary, Preliminary and/or Permanent Injunction for the case involving The Sierra Club v. The Department of Transportation of the State of Hawai`i (2CC05-1-0114(3))
NEPA of 1969:(D) Any detailed statement required under subparagraph (C) after January 1, 1970, for any major Federal action funded under a program of grants to States shall not be deemed to be legally insufficient solely by reason of having been prepared by a State agency or official, if:(i) the State agency or official has statewide jurisdiction and has the responsibility for such action,(ii) the responsible Federal official furnishes guidance and participates in such preparation,(iii) the responsible Federal official independently evaluates such statement prior to its approval and adoption, and(iv) after January 1, 1976, the responsible Federal official provides early notification to, and solicits the views of, any other State or any Federal land management entity of any action or any alternative thereto which may have significant impacts upon such State or affected Federal land management entity and, if there is any disagreement on such impacts, prepares a written assessment of such impacts and views for incorporation into such detailed statement.