The Superferry briefs - what exactly did the plaintiffs win? And what will the two sides fight about next?

Thanks to inversecondemnation.com for hosting copies of the briefs in the Superferry Appeal. It costs money to get these things from the court clerk and server space isn’t free either. That’s what I call public service blogging.

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The groups suing to require an environmental assessment be conducted for harbor improvements for operation of the Superferry asked the Supreme Court for five things. They won three of those things and while they probably lost the other two, until the Court files its opinion, the ultimate disoposition of those remaining items is to at least some small extent still up in the air.

Recall that back in 2004 Hawaii Superferry applied to the state for the certification necessary to operate. Hawaii environmental law requires an environmental assessment – a preliminary study to determine whether a full blown environmental impact statement will be required – for projects that use state or county lands or funds. The ferry project proposes to use both.

However, the law exempts from the environmental assessment requirement projects having minimal environmental impact. Pursuant to that law, the Environmental Council has adopted a list of exempted activities.

The Hawai`i Department of Transportation made a determination that harbor improvements proposed for operation of the ferry fell within the activities exempted under the rules. (According to the plaintiff’s brief, these improvements consisted of a barge moored to a pier, a removable vehicle ramp, updated utilities, fencing, pavement striping, and tents for passenger waiting areas).

The plaintiff groups – The Sierra Club, Maui Tomorrow, and Kahului Harbor Coalition – sued seeking a determination that, contrary to the DOT determination, the Superferry project does require an environmental assessment. The circuit court found among other things that the plaintiff groups did not have legal standing to sue and that the DOT’s determination that the improvements were exempt from the assessment requirement was indeed correct and legal.

The plaintiff groups appealed to the state Supreme Court asking it to overrule the trial court’s ruling that they lacked standing and its ruling that the exemption determination complied with the law. They also asked the Court to order an environmental assessment. Indeed, the Supreme Court issued an order giving the plaintiff groups the win on these issues.

The plaintiffs also asked that the Superferry not be allowed to operate until “compliance with [the law] be satisfactorily demonstrated,” and that the Department of Transportation be prevented from taking any further steps to implement the project. The Court’s order didn’t implement either of these last two requests and it appears that the plaintiffs lost on those points. Indeed, the plaintiffs went back to the circuit court to get a temporary injunction to keep the ferry out of the harbor at Maui. It’s possible the Supreme Court will have something further to say about these points in its eventual decision. But by the nature of the requests, one would think it would have done so in the order. I suppose one could say the only thing certain about these issues is that, if the Supreme Court does not dispose of them, they will be the subjects of future litigation.

The question left wide open – and that will definitely find its way back into the courts – is what will be the scope of an environmental assessment. The state and Superferry will argue that it ought to be limited to the harbor improvements that brought the project within state environmental legislation in the first place. The plaintiff groups will argue that, once the requirements of the law are triggered by the harbor improvements, then everything about the ferry’s operation ought to be examined for its environmental impact.

Update: Ian Lind has some additional thoughts on the briefs.