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ideas > Superferry in Hawaii

Superferry in Hawaii
In its opinion dated August 31, 2007, that temporarily halted service provide by the Superferry, the Supreme Court of Hawaii stated "HEPA (Hawaii Environmental Protection Act) does not provide direct guidance as to what standards of review should apply to an agency's determination that a project is exempt from the preparation of an EA. Therefore, this court must decide which standard of review to apply."

The DOT (Department of Transportation) and OEQC (Office of Environmental Quality Control) determined in 2005 that no environmental assessment was necessary for improvements made to the Kahului Harbor which would allow the Superferry to service Maui. A group of plaintiffs filed a civil suit shortly thereafter to oppose this decision by the DOT and the OEQC. The Maui Circuit Court ruled for the state on this issue and did not grant the plaintiffs their request to, in essence, require an environmental assessment. It was appealed, and the Hawaii Supreme Court ruled a few days before the Superferry would start operations that the Maui Circuit Court erred in its decision and that an environmental assessment should be required.

Clearly this is a case of interpretation of the law. The State determined that the environmental assessment was not required for this case. The Supreme Court itself declared that HEPA does not provide direct guidance on what standard to use when deciding this. So the State had to make a decision on what standard to use. What else could they do? If the law is not clear, somebody needs to make a decision. The State followed the law. The Superferry followed the law. The Courts and the environmental activists are holding the State and the Superferry hostage based on an argument that the state made an incorrect decision on the review, but the law does not clearly tell the State what to do. This sounds like a law that needs to either be changed or the justices need to quit meddling in affairs that the legislature should be fixing.

My question to this state is "How is a business to operate in this state if the laws that it is supposed to follow are not clear?" Clearly, the Superferry followed the guidance of the DOT and the Office of Environmental Quality Control determined the environmental assessment was not required in Kahului Harbor. What more can a business do? If the law is not clear and the State makes an interpretation and then the Courts can step in after the fact and say that what was determined was incorrect, then it is impossible to do business in this state nor to predict how to do business in this state. It is judicial and environmental tyranny pure and simple.

Individuals, businesses, and governments can only follow the law at the time. The law was not clear on what to do. A determination was made. Paralysis and tyranny result from allowing the judiciary to overturn an executive branch's good-faith interpretation of a law that provided no direct guidance. If the law is vague, then some leeway needs to be given to the executive branch's decision-making until the law is fixed by the legislature. This is not the role of the judiciary in a free nation. It is the role of a tyrannical government to allow unelected officials like these judges, to in essence, override the role of the executive branch in figuring out how to apply vague laws. It is unfair to business, individuals, and governments for judicial tyranny to reign supreme in a free nation. We are a nation of laws, not judicial edicts from on high. How can one know how to act, if one is always afraid that the judiciary can step in at any time and declare that someone or some entity did not follow the vague law as the court interprets it? It is a recipe for judicial tyranny and loss of freedom.
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