Thursday, September 4, 2008


SALTY DOG: Dividing lines on the Hawaii Superferry (HSf) were reportedly drawn at Tuesday’s mayoral debate with candidates Mel Rapozo and Bernard Carvalho giving unqualified support and JoAnn Yukimura and Rolf Bieber coming down on the skeptical side.

Seemingly though, for most the determining factor is completion of the environmental impact statement (EIS) currently being undertaken.

Kauaians overwhelmingly, whether they favor or despise the HSf want to know all the impacts island wide and how they are going to be dealt with.

But ever since the Eco-Roundtable candidates’ forum there’s been a question as to the validity of the current Belt Collins EIS that was called the “Act 2 EIS” in a question to the candidates, as distinguished from a normal EIS under the Hawai`i and National Environmental Protection Acts, HEPA and NEPA respectively.

Though we’ve asked numerous people during the last month what the exact difference was we were unable to even get an approximate answer... until now.

Intrepid Superferry researcher and foe Brad Parsons- who was MauiBrad until he recently moved to our shores to become KauaiBrad- has a post at his Hawaii Superferry Unofficial Blog, explaining that Act 2 will not contain one of the most important elements of an EIS- the “no action alternative”.

Apparently one of the council members didn’t get it either and asked Brad to clue us in on what others have been referring to.

Brad wrote in reply

From reading Act 2 and Chapter 343 and from a speech I heard Dan Hempey give based on a conversation he had with Isaac Hall, my understanding is that Act 2 does not allow for the 'no action' alternative on the project being studied, further it does not provide for the governing authority to reject and not allow the project. The 'no action' alternative is a part of a real EIS under HEPA Chapter 343 and a federal NEPA EIS.

What this essentially means is that it’s a given that the EIS will not have to provide for mitigation of the environmental, cultural and social impacts because it doesn’t really matter whether they do or not.

In other words the boat is already in service so therefore the impacts somehow don’t matter and can and will be ignored.

But does the Hawai`i state legislature really have the right to say this? Apparently not.

HEPA is the state version of NEPA which details the federal mandates states must follow in preparing EIS’. And one of the most important is the evolved standard “no action alternative” which is in EIS’ for the “accepting” entity to use if they determine that either all the impacts are not identified or more importantly that the impacts are so great that they simply cannot be sufficiently mitigated.

Many think the latter would probably be the case in an “honest” EIS without spending hundreds of millions of dollars on improving our infrastructural capacity and protecting our resources

In the federal courts it has become quite clear that the “no action alternative” (NAA) is an essential element of any EIS.

Just recently here in Hawai`i, in cases involving both the Army’s use of the sacred Makua Valley on O`ahu and the Navy’s use of sonar, the U.S. 9th Circuit Court of Appeals ruled that the lack of the NAA is reason enough to go back to the drawing board and has stuck down the EIS’ that didn’t contain them.

But the whole history of the HSf is littered with a total regard of federal law. That’s because it has suffered from a dearth of cases filed in federal court except for one that was thrown out, not on the merits but on technicalities, well before many pertinent facts were known and more than a year before the ferry first attempted to travel.

As PNN detailed in a series of articles last year, from the State Department of Transportation’s original “exemption” for the HSf that was struck down by the Hawai`i Supreme Court to the state’s lack of adherence to the federal Coastal Zone Management act by playing a shell game with the local Special Management Area permitting process, the state has routinely ignored federal laws that trump the state statutes.

But none of the attorney’s involved in getting adherence to State law have chosen to go to the Federal courts to get state compliance since that long ago ruling

Parsons closed his piece by saying

The following is a passage written by a legal expert involved and further explains it, "Act 2 changed the very purpose of HEPA just to accommodate the Superferry Corporation. Until November 1, 2007 (the day Act 2 took effect), HEPA had been based on the fact that EA studies were “critical to humanity’s well being,…and that an environmental review process” was necessary to “alert decision makers to significant environmental effects which may result from the implementation of certain actions.” Act 2’s stated purpose is to “facilitate the establishment of interisland ferry service and, at the same time, protect Hawai‘i’s fragile environment (italics added) by clarifying that neither the preparation of an environmental assessment, nor a finding of no significant impact, nor acceptance of an environmental impact statement shall be a condition precedent to, or otherwise be required prior to … operation of a large capacity ferry vessel company.”"

Rapozo has been duped- as has Carvalho, as have thousands of people on Kaua`i- into thinking that a there is an EIS being prepared that adheres to federal standards.

But as feared, the legislature’s “Act 2”- which threw out the "condition precedent" requirements of Chapter 343 of State law aka HEPA - not only allowed the HSf to operate while an EIS was being done but threw out any question of operation after it was done.

As mayoral candidate JoAnn Yukimura was quoted as saying at the debate

Yukimura said she needs assurance the issues that may be identified in the environmental assessment — such as traffic, drugs, overcrowded parks, invasive species and cultural theft — will be operationally addressed and “not just with words.”

It’s like asking if we want a chocolate bar and then giving us a chocolate-covered turd. When we break it open and look at it closely we complain that “this is nothing but a piece of shit”.

Apparently Rapozo’s, Carvalho’s and the Chamber of Commerce crowd’s answer to us is “yeah but it’s really great shit”


Mauibrad said...

Andy wrote about an Act 2 'EIS' being, "...a chocolate-covered turd. When we break it open and look at it closely we complain that “this is nothing but a piece of shit”...[but proponents say], “yeah but it’s really great shit.”

This is funny, Andy! I don't know how you come up with so many appropo dog references throughout all of your blog posts.

Aloha, Brad

Anonymous said...

The difference in the purpose of act 2 and the original purpose of HEPA is startling.

HEPA's purpose, the protect humanity and require environmental studies before significant actions.

Act 2's purpose is to facilitate a ferry company, and protect the environment by ensuring that the ferry does not have to do any environmental study before it operates.


Don't people see how intellectually dishonest this is? So much for protecting humanity.