Friday, December 19, 2008

'Public Need' was Never Established as Fact

The State Supreme Court did not issue a quick decision on the status of Act 2. I imagine they need to carefully word whatever they issue on this. Politically, it would be much easier to uphold Act 2 than to take the time to form a solid legal decision to rightly strike it down.

You can watch for the decision at the Court Website. They don't usually issue opinions on Saturday or Sunday, so I imagine we won't hear anything new until no earlier than Monday, maybe even later. Many of their decisions appear to take a week or two to be issued. I'm going to try to take Saturday and Sunday to come up with a detailed post on "Act 2: Content Creating a Closed Class of One."

For now though, Derrick DePledge had another fairly good article today, "Intent of EIS relief for ferry debated; Supreme Court hears arguments on whether law applies only to firm." My comments to two points in that:

Re: "If the court rules in favor of the environmentalists, Superferry could possibly have to halt service while the state prepares a new environmental assessment under the state's environmental review law, which could take another year."

NO. The state would NOT prepare the new environmental assessment nor EIS under Chapter 343, that is the responsibility of the company, just as it has been with other entities covered under Chapter 343. There are no freeby EA/EIS handouts under Chapter 343 as opposed to Act 2.

Re: "Ginoza countered that...the public interest with the new law. (The new law) 'specifically balances the public need for an innovative and alternative mode of transportation...'"

Neither the Governor nor the Legislature nor the PUC undertook any studies to establish as fact that HSF and it's particular design would actually satisfy a public need or benefit (hastily written Resolutions in 2004 did not establish a fact of need). If HSF does not return, another company with a better, smaller design for these conditions could come in under Chap. 343.

Aloha, Brad

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