Honolulu Weekly

The Public Utilities Commission appears to have jumped the gun earlier this summer when it determined the Hawai’i Superferry had fulfilled all the conditions and requirements attached to its 2004 certification allowing it to carry passengers and cargo between the islands.

One provision of the PUC’s original 2004 certification required the company to be in compliance with all laws, specifically including laws relating to an environmental impact statement, before it could begin service.

Lori Abe, senior vice-president at McNeil Wilson Communications and a Superferry spokesperson, said the PUC confirmed on June 12, 2007 that all conditions had been met.

‘Hawai’i Superferry has complied with all laws,’ Abe said in an e-mail in response to questions from Honolulu Weekly.

But the Hawai’i Supreme Court’s unanimous ruling two weeks ago that an environmental assessment of the entire Superferry project is required appears to contradict that conclusion.

Abe argued the Supreme Court decision does not apply directly to the Superferry.

‘The decision in the Sierra Club case is that the Department of Transportation should have prepared an environmental assessment,’ Abe said. ‘No court has decided that Hawai’i Superferry had to prepare an environmental assessment or was not in compliance with laws.’

But Isaac Hall, attorney for the environmental groups that brought the court challenge, disagreed.

‘I think that’s too narrow an interpretation of the PUC condition,’ Hall said in a telephone interview. ‘I think the commission was saying, even though we’re not going to require an environmental assessment at this time, if one is required then it’s a condition of this approval, and it should be prepared before they start operating.’

The PUC has decided to leave the decision as to whether the Superferry should be grounded to the courts, chief counsel Stacey Djou told the media last week. Djou is the wife of Honolulu City Councilman Charles Djou, who has already filed with the Campaign Spending Commission as a Republican candidate for lieutenant governor in 2010.

Hawai’i Superferry, Inc. originally applied for PUC approval to operate as a water carrier between the islands on July 22, 2004. During public hearings on the application, questions were raised ‘about the impact of the proposed ferry system on the environment and suggesting that an environmental assessment be done,’ according the commission’s subsequent decision and order.

The commission partially sidestepped those issues, noting that the need for environmental studies was then being discussed by both the Department of Transportation and the Legislature, which was pressuring the PUC to act quickly.

But the commission underscored its sensitivity to environmental concerns by imposing a general condition that all laws, including environmental laws, be followed:

‘We find it necessary, however, to condition our authorization in this docket upon Applicant’s showing, to the satisfaction of the commission, that Applicant has complied with all applicable federal and state laws, rules and regulations, including, without limitation, matters relating to the Environmental Impact Statement Law, under Chapter 343, HRS, to the extent applicable to ensure that all such requirements are appropriately addressed.’

The commission ordered the Superferry to comply with this and other conditions no later than 90 days before starting service or by Oct. 31, 2006, ‘whichever comes first.’

On Oct. 11, 2006, the PUC granted additional time to comply before its June 2007 ruling that the conditions had all been met.

Ron Sturtz, a spokesman for Maui Tomorrow, one of the plaintiffs in the case that went to the Supreme Court, questioned how the PUC had made its decision to stand aside.

‘I have to wonder who they communicated with, what was before them, and what the understandings were among the various parties when they made that decision,’ Sturtz said.

Sturtz said the legal action right now is in the Maui courtroom of Circuit Court Judge Joseph Cardoza, but asked whether an appeal of the PUC certification is possible, he replied: ‘That is not foreclosed.’ 

For more reports from Ian Lind, visit [www.iLind.net]