Saturday, December 27, 2008

Act 2: A Closed Class of One (Part 3)

In Act 2 there are at least 5 places, 3 Sections in the Act, where prior agreements or approvals that had been invalidated by the courts are explicitly stated to be reauthorized by Act 2. The key Sections for these reauthorizations are Section 1(d), Section 3, and Section 15. The reauthorizations are for:

1) The certificate of public convenience and necessity;
2) Any agreements between the department of transportation or the state and a large capacity ferry vessel company previously entered into;
3) Any state lands previously authorized to be used;
4) Any state harbor improvement or state or county facilities previously made or made available; and
5) Any tariffs issued by the company for the purpose of facilitating this provision of service.

Section 1(d) basically states that neither prior acceptance nor condition precedence of an environmental impact statement is required for the above listed reauthorizations. Section 3 basically says the same regardless of Chapters 205A, 269, 271G, and 343, Hawaii Revised Statutes.

Section 15, though, is the interesting one. Section 15 basically says that any previously made appropriation or previously authorized expenditure of funds for a large capacity ferry vessel company or for harbor improvements or operating expenses to accommodate the company are expressly re-approved and re-authorized under Act 2. But, Section 15 nor anywhere else in Act 2 neither approves nor authorizes additional future appropriation or expenditure of funds needed to accommodate any additional large capacity ferry vessel company. Section 15 is as follows:

PART IV SECTION 15. Any previously made appropriation or previously authorized expenditure of funds for any inter-island ferry operations of a large capacity ferry vessel company, or for improvements or operating expenses to accommodate its provision of inter-island ferry service, shall be approved and authorized to the extent they are needed to effectuate the provisions of this Act.
Any state lands previously authorized to be used to facilitate or support the operation of a large capacity ferry vessel, shall be authorized to be used to effectuate the provisions of this Act.
Any state harbor improvement or state or county facilities previously made or made available to facilitate or support the operation of a large capacity ferry vessel may be used by any large capacity ferry vessel company or any other person to effectuate the provisions of this Act.
Any certificate of public convenience and necessity previously issued to a large capacity ferry vessel company may be used to effectuate the provisions of this Act.
Any tariffs issued for the purpose of facilitating the provision of service by a large capacity ferry vessel may be used to effectuate the provisions of this Act.
Any agreements between the department of transportation or the state and a large capacity ferry vessel company previously entered into for the purpose of facilitating the provision of service by a large capacity ferry vessel may be used to effectuate the provisions of this Act.

Of all of the provisions in Act 2 that deal with the re-authorizing issues previously invalidated by the courts, Section 15 is clearly the one that does so inconsistently with regard to the prior large capacity ferry vessel company relative to any additional large capacity ferry vessel company seeking to come in under Act 2 and requiring some appropriation or expenditure of state funds for operations of the latter large capacity ferry vessel company, or for additional improvements or operating expenses to accommodate its provision of inter-island ferry service.

Beyond this implicit unconstitutional special privilege drafting of Section 15, the timetable of how a second or more large capacity ferry vessel companies could not meet the requirements listed in Act 2 Part III and in Sections 1, 3, and 15, within the maximum of 20 months of the life of Act 2 will be the subject of my next post, Act 2: A Closed Class of One (Part 4).


Aloha, Brad

2 comments:

Dr George R. Harker said...

Nice job Brad! I think the Supreme Court is waiting on their opinion to see what you have to say. They don't want to miss anything and might as well hit them with the full load. Aloha Dr. L

MauiBrad said...

Oh, why thank you Dr. Leisure®.
These are actually kind of hard to write. I need to start in on Part 4 now.

Mahalo, Brad