Hawaii Court Backs Protestors vs. Superferry
(But the Sage Continues)
By Jerry Mander & Koohan Paik
March 24, 2009
In the latest turn of events in Hawaii's impressive grassroots uprising against a huge corporate-military boondoggle, the state's Supreme Court has ruled unanimously (5-0) that the Hawaii Superferry has no legal authority to continue its operations in the state, at least for the time being. But, hold the cheery encomiums and ginger-blossom bouquets; there are downsides to this story that, so far, most media have neglected. First, the good news.
The ruling struck down as "unconstitutional" a law instigated by right-wing Republican Governor Linda Lingle called Act Two, which was intended to circumvent an earlier unanimous Hawaii Supreme Court ruling (August 2007). That prior decision asserted that the giant high-speed catamaran--which races at 40 miles per hour through humpback whale calving grounds, uses 12,000 gallons of gas on a round trip between islands and may have other extremely serious environmental effects--could not begin operations without first completing a full Environmental Impact Statement (EIS) under the Hawaii Environmental Policy Act (HEPA). The Superferry company, however, owned by the infamous New York militarist financier John F. Lehman, former Secretary of the Navy under Ronald Reagan, advocate of a 600-ship Navy to dominate the world's oceans and member of the neocon Project for the New American Century, said it would not comply with the 2007 decision. Governor Lingle immediately backed Lehman via her (illegal) legislative foray, which exempted the Superferry from doing an EIS under HEPA and gave faux authority for the boat to keep operating. This was the biggest of many favors she did for Lehman and the company in a campaign many critics believe was designed as much for her own future in the Republican Party as for any concerns about Hawaii. Lehman was likely to be John McCain's chief of staff, had he won (according to a New York Times report before the election), a position that might have put Lingle in good position for national office, which she apparently craves.
And yet, after last week's court ruling, the Superferry company showed surprisingly little desire to fight, quickly announced it would suspend all Hawaii service within three days and did. This struck some observers as out of character for such an aggressive, self-important outfit, and raised new questions about the company's and Lehman's intentions: What's up now? Could it be the company actually wanted to get out? Does this confirm that the Hawaii adventure was really only a demo for bigger military options, as many suggest? We will come back to that below.
Anyway, the good news set off celebrations on the islands of Kauai and Maui, which have led the protests against the Superferry. Eighteen months earlier, on the occasion of the boat's maiden voyage, Kauai was the site of a landmark two-day uprising, where 1,500 protestors occupied the shoreline at Nawiliwili Harbor. They shouted their demands for an EIS, as dozens of surfers leaped into the water and paddled out dangerously close to the catamaran blades of the oncoming 350-foot colossus, stopping it cold in the water. It was a convincing display of determined resistance and daring from a laid-back community not usually known for political action. The boat never came back to Kauai.
Similar joy was displayed on Maui, which had suffered the only remaining Superferry run. After cancellation of service to Kauai, and then also to the Big Island, the Honolulu-Maui-Honolulu run, once daily, was the company's last hurrah. Three Maui groups--the Sierra Club, Maui Tomorrow and Kahului Harbor Coalition--were plaintiffs in both lawsuits that brought the Supreme Court victories. Irene Bowie of Maui Tomorrow said, "It's unfortunate all this had to take place; I wish the state and Superferry had taken the correct action in the beginning, and followed the law."
But wait! The battle may not be over. As David Brower, the celebrated leader of the Sierra Club during its heyday in the 1960s, often said, "there are no environmental victories, only holding actions; they always come back."
First there is the Cheneyesque Governor Lingle, who never admits mistakes, and never quits pushing. She said that ending Superferry service would be "devastating" to Hawaii--she may have meant devastating to herself--and arrogantly re-asserted that Act Two was entirely legal, whatever the unanimous court said.
Lingle revved up the conservative Honolulu broadcast media to blame environmentalists rather than herself for the loss of 236 Superferry jobs. But as one opponent responded, "If it's illegal jobs the Governor wants, then growing marijuana would be more profitable, better for the environment and doesn't need absentee owners."
Lingle announced that her Attorney General will ask the Court to "reconsider" its verdict, and that her Department of Transportation would do the EIS under HEPA that the company refused to do in 2007, hoping to someday lure it back. Lingle is also trying to again persuade the Democratic legislature to save the Superferry via some tricky legal interventions. Opposition leader, State Senate Majority Leader Gary Hooser, would have none of it, blaming the whole situation on Lingle for exempting the Superferry from an EIS in the first place. Senator J. Kalani English agreed: "It goes back to the beginning. We [opposition senators] told the Superferry, 'simply follow the EIS law.' If they had done that, none of this would have happened."
Then there's the Superferry company itself and its absentee owner, John F. Lehman. Most people assumed the court decision would also be "devastating" to the company. But now the sense is growing that it is secretly delighted, for two compelling reasons.
First, the operation has been a commercial flop and the company and its investors are losing money fast in hard times. According to the Honolulu Advertiser, during the past three months the Superferry has operated at below 25 percent of capacity for people, cars and trucks. And according to a citizens' watchdog commission set up by Act Two, the Oversight Task Force, overall performance figures since the project's inception are little better. The company itself always suggested 50 percent of capacity as its break-even point (at rates that included a gasoline surcharge), a mark it has only hit sporadically. It just looks like most people are not that into a three-hour boat ride through famously rough waters; the Superferry barely dented the far more popular, and far more fuel-efficient, airplane ridership. It would probably be less headache for Lehman to sell the two boats--each built for about $90 million (and one of which, because of all the cancelled routes, has never begun operating)--and transform a losing enterprise into, maybe, $200 million cash while also eliminating operating costs. Or to lease the boats at a profit to the military, or Singapore, or someplace without activist surfers. The Supreme Court served up the perfect escape route. (A strong rumor has the boats headed for a Guam-Saipan-Tinian career that, alas, would not avoid protestors. There are a lot of anti-military activists on Guam.)
Secondly, there's the military angle. As we reported on March 16 in The Nation and in our book, The Superferry Chronicles, during the last several years it became apparent that the Hawaii Superferry may have had more to do with military intentions than with its advertised role as friendly local transport for people and avocados between islands. The evidence is circumstantial but strong: Lehman's military advocacies, a board of directors that's like a shadow Pentagon and a CEO, Admiral Tom Fargo, who was commander of all US military operations in the Pacific under George W. Bush. What do all those military celebrities have to do with a neighborly ferry service? And why was the boat itself built completely out of scale for Hawaii--way too big, powerful and gas-guzzling, as the numbers are proving--but perfect for trans-Pacific purposes.
The company routinely denies this. At his shut-it-down press conference last Thursday, March 19, Admiral Fargo scoffed at the notion. "Not true," he said. "We certainly would not have gone to the trouble to paint the Alakai [Superferry] in the manner we did, to appoint her with first-class seats...if that [military use] was our goal." And yet, there have been innumerable contradictory published statements by other company executives (including Lehman) over the past eight years, that the Superferry might well be used for such military purposes as carrying Stryker tanks among the islands, among other uses. Why deny it? What can of worms does it open?
Most intriguing, for example, is the fact that in November 2008, the manufacturer and designer of the Superferry, Austal US, of Mobile, Alabama, a division of an Australian company, was awarded a huge US Navy contract to build ten new high-speed, light, high-capacity, aluminum-hulled, shallow water catamarans--which except for military accouterments (and that paint job!) are nearly identical to the Superferry design--for the Navy's Joint High Speed Vessel program. This is one of two Navy programs that contemplate some fifty-five aluminum-hulled boats in the Pacific in preparation for possible challenges from China. This first ten-boat contract with Austal is worth $1.6 billion.
According to the New York Times, Bill Pfister, vice president for external affairs of Austal, credited the Superferry project with helping Austal develop a credible US workforce and construction process. "Building the Superferry was very helpful in demonstrating we can build these ships in the United States" he said. Now they get to build ten more.
Even more important was getting the Superferry into the water in Hawaii and keeping it there to demonstrate its seaworthiness, making it a perfect demo model, a working prototype for the Austal-US contract. So was this a central goal of the Superferry project all along, to help Austal get the contract? Is this why it was so important to avoid an Environmental Impact study, which might have delayed the boat's deployment? Did Linda Lingle know this? And with the contract established, is this why the company can so willingly leave Hawaii? A lot of people believe that.
Whether, or how, John F. Lehman or any of his corporations, including the Superferry, actually achieves any financial benefit from Austal's bonanza, remains unknown. Two years ago, however, Lehman bought a shipbuilding company called Atlantic Marine, adjacent to Austal in Mobile, Alabama. So far, however, we have found no reports of further agreements between the two companies for collaborative work on the Navy contract.
So here's the wrap-up: Assuming Lingle can't overcome the court, the people of Hawaii are free of the Superferry, possibly forever, and have time to contemplate what kind of alternative ferry service might be desirable--smaller scale, slower, environmentally friendly, locally owned or better yet, publicly owned. And, a new diverse activist resistance coalition has been born. As for Governor Lingle, she has been embarrassed and exposed for her many disgraceful actions, and politically she may now be toast.
And John Lehman? Well, it appears his business acumen is confirmed. He will probably come out of his Hawaii adventure escaping financial harm, and maybe with considerable gain, depending on the sales and/or rental agreements he makes for his giant boats, increasingly admired by potential military clients. And if he does somehow get involved in the Austal production bonanza he helped support, that will bring him personally closer to fulfilling his grandest dreams of expanded US domination of Pacific waters.