U. Hawaii law student Stewart A. Yerton has published a comment in the most recent issue of the Asian-Pacific Law and Policy Journal, “Procedural Standing and the Hawaii Superferry Decision” How a Surfer, a Paddler, and an Orchid Farmer Aligned Hawaii’s Standing Doctrine with Federal Principles.”
From the Introduction:
This paper will examine the background law and the procedures, strategies, and arguments the Superferry plaintiffs employed in order to attain standing, as well as the arguments the defendants used in an attempt to keep the plaintiffs out of court. Part II will outline federal and state environmental standing doctrine, paying specific attention to cases most relevant to Superferry. The section will conclude with a brief statement of Superferry’s factual background. Part III will analyze four subjects: (1) how the plaintiffs’ lawyers convinced the court to navigate precedent and firmly establish procedural standing in Hawaii, (2) the role of the individual environmentalists as an element necessary to obtain standing, (3) a recent law review article that argues the Superferry court expanded standing doctrine in Hawaii beyond reasonable boundaries, and (4) alternatives to the doctrine that Superferry articulates. The paper concludes with a suggestion to adopt one of the simplified alternatives.
Yerton concludes:
Whether Hawaii will ever have an interisland ferry is unclear. What is clear, however, is that because of the Superferry project and the surrounding litigation, Hawaii has a well–articulated procedural standing doctrine — a doctrine that is defined in federal case law and grounded in Article III. It also is apparent from the tale outlined above that implementing federal standing doctrine is a complex and time-consuming analytical and procedural task for judges and lawyers. Hawaii, therefore, should consider replacing the doctrine with one that is easier to implement in environmental matters. Although critics might fear that Article XI standing would spawn a flood of litigation, the policy actually would promote judicial economy by removing a time-consuming threshold task and allowing the parties to move more quickly to the merits of a case. The threshold question under Article XI standing would be whether there is sufficient evidence to show that a defendant in fact violated an environmental law. Furthermore, Article XI standing is grounded in the plain language of the Hawaii Constitution. If the Superferry case prompted Hawaii to adopt Article XI standing, the Superferry decision would have yet another legacy. In a world of Article XI standing, Hawaii judges and lawyers might well look back at the Superferry Court’s tortured analysis of standing and view it as just another excess of the saga.
We added our thoughts on the Hawaii Supreme Court’s standing doctrine and the Superferry case in our post Superferry EIS Case Summary pt. II: Throwing Open The Barn Door After the Horses Have Been Let Out.