The latest from attorney and legal advocate Lanny Sinkin on the constitutional/environmental status of the Hawaii Superferry...

Article XI, Section 9 Constitution of Hawai'i

Section 9. Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law. [Add Const Con 1978 and election Nov 7, 1978.

"The Court finds and concludes that the balance of irreparable damage favors the issuance of a permanent injunction in this case as Plaintiffs have demonstrated the possibility of irreparable injury with respect to the environmental impacts of Hawaii Superferry operations on natural resources, protected species, increased introduction of invasive species and causing social and cultural impacts." Order Granting Plaintiffs' Motion to Enforce Judgment Requiring Environmental Assessment by Prohibiting Implementation of Hawaii Superferry Project, for Temporary, Preliminary and/or Permanent Injunction" Filed October 9, 2007 in The Sierra Club et al. v. The Department of Transportation, et al., CV 05-1-0114(3), In the Circuit Court of the Second Circuit, State of Hawai′i, Judge Cardoza.

One test for any legislation proposed to exempt Superferry from the requirements of environmental laws is whether such legislation can pass constitutional scrutiny in light of Article XI, Section 9 and the opinion of Judge Cardoza in the Sierra Club case.

The Legislature can change the law to give Superferry a free ride on Hawai′i's environment. In doing so, the Legislature will be acting to sacrifice the statewide environment for the benefit of one business project. Making such a decision may carry a high political price.

The Legislature cannot amend the Constitution through such legislation. To make a decision with a high political price, only to have that decision declared unconstitutional, does not sound like a sensible political calculation.

Certainly, those pesky environmentalists will look forward to filing suit challenging the constitutionality of any such legislation. With Judge Cardoza's opinion, such a suit should have a good chance of securing a ruling that the legislation is unconstitutional.

Perhaps the Attorney General and the Governor should be asked how their proposed legislation passes constitutional muster in light of the provision noted above and Judge Cardoza's ruling.


Lanny Sinkin