▪ "Hawaii Superferry EIS" — Or "Kahului Harbor EA"?

Much of the discussion about the recent Hawaii Supreme Court order in the "Superferry" case seems to overlook a few things:

• HAWSCT did not order the Hawaii Superferry to do an Environmental Impact Statement (EIS) for operating, at least as far as I can tell.  The lawsuit is to force the State to accomplish an Environmental Assessment (EA) for the improvements made to Kahului Harbor to accommodate the Superferry.  So it is not the "Hawaii Superferry EIS," at least directly, and I've been guilty of the mislabeling.  Maybe under HRS ch. 343 that is a distinction without much of a difference, but at least let's get the terms right.  I have posted the briefs of the parties here, where the legal claims and arguments are detailed.
  

• There is little chance the circuit court will enjoin Superferry from returning people and their cars to their points of origin, even if the court enters an injunction ordering Superferry to halt operations.  "The life of the law has not been logic, it has been experience," said Justice Oliver Wendell Holmes a long time ago, and he's still pretty much right.  Any injunction should take into account the practicalities, and the fact that passengers would need to get home with their cars.  It appears that the ferry's inaugural public run went OK, so no harm in at least one more.  Courts are practical, and should not create a group of castaways who would either have to start renting one of those unlicensed vacation rentals we hear so much about, abandon their cars on Maui or Kauai, or start living in them.
  • Aug. 28 update: temporary restraining order issued, with the instruction that customers may be returned to their "home" port before ceasing Kahului operations.

• The Hawaii Supreme Court did not "go further" than the plaintiffs requested.  A Maui News editorial claims so because the the Court "retained jurisdiction" over the case to allow it to issue its opinion, it is acting "as a watchdog over the Department of Transportation."  This reflects a misunderstanding of appellate jurisdiction -- after remand, the Maui circuit court has jurisdiction, and that is where the plaintiffs will probably seek their injunction.  As I noted in this post, there is nothing terribly unusual about an appellate court issuing a quick order with the note of "opinion to follow."  The appellate court has to "retain jurisdiction" specifically so that there is no confusion; generally speaking, when a court of appeals remands a case to a lower court, the appellate court automatically loses jurisdiction over the case, so it is a mistake to read too much into the fact that the Supreme Court retained "concurrent jurisdiction" to allow it to issue an opinion, and conclude that this means it is a "watchdog" over the DOT. 

The editorial also surmises that the Court "went further" because it not only reversed the standing issue, but ordered that the State DOT should have required an EA as a matter of law.  This probably does not, in itself, reflect any sort of strong statement by the Supreme Court or "going further."  Generally, the Supreme Court is the final arbiter of all legal questions on Hawaii law, and there would have been little point to remanding the case to the circuit court without legal guidance.  The Court's opinion, when issued, should clarify this point.