▪ "Drawbridge Protectionism," the Superferry EA / EIS, Raindrops, and Floods

The issues in the lawsuits about the Hawaii Superferry Environmental Assessment dwell on legal technicalities such as standing, the statute of repose, and the standard of review.  But the case seems to have touched a deeper nerve, serving as the crucible for wider issues not limited to the Superferry.  For a flavor, read the LA Times' report of the Kauai Superferry protests here and the Honolulu Advertiser's story here.

In that vein, I just revisited a Land Use Prof Blog post from earlier this year by Professor Paul Boudreaux entitled "From NIMBY to ... 'Drawbridge Protectionism'."  The post, as its title suggests, discusses economic and land development versus environmental and cultural claims, and has become more topical in the wake of the Superferry case.  Professor Boudreaux makes some good points:

"NIMBY" is perhaps the most overused term in land use policy debates, even though the term itself is only a few decades old.  It makes sense to complain of a "€œnot in my backyard"€ syndrome to snicker at objections over LULUs ("€œlocally unwanted land uses"€) such as a factory, a bus station, or a halfway house.  One might say that it'€™s human nature not to want such distinct land uses near one'€™s back yard.

But the broader phenomenon of objections to development in general raises more serious policy issues.  The desire to preserve the quiet "€œcharacter"€ of a town deserves a term that is distinct from NIMBY.  Alternative acronyms (here's a list) might include BANANA ("build absolutely nothing near anyone"€) and CAVE people ("citizens against virtually everything"), but these imply nutty extremism.   

The more nuanced nature of the topic justifies a divergence from the practice of cute acronyms.  One term that comes close is the "raise the drawbridge"€ phenomenon, used to refer to citizens who are already inside a preferred area (those who have already, say, built their A-frame on the Oregon coast) and who now want to raise a legal drawbridge to keep others out.  But, to me, even this term focuses on an implication of individual selfishness that fails to capture the larger social effects of the anti-development phenomenon.  For example, one town's rejection of new housing development is likely to push the pressure for development elsewhere (just as localities jostle with their neighbors to discourage the homeless).

Read the entire post here.  His points resonate because the public debate about the Superferry -- including issues of traffic, invasive species, and access to local fishing and surf spots -- seems to embody the drawbridge phenomenon.  Residents of the neighbor islands,  whether born there or late-comers, like their communities just the way they are.  Or at least they don't want them to get any "worse." And "drawbridge protectionism" is certainly more palatable than "I got mine."   

As anyone who has been involved in the land-use process in Hawaii knows, this phenomenon is not new, or limited to the Superferry.  For an example, read this earlier report in USA Today, "Land-use debate ugly in paradise" about a proposed development on Molokai.  One irony-filled quote sums it up nicely:

"There is trouble in paradise," says Annie Van Eps, 59, an art gallery manager who moved from California five years ago. "This has split our island. Can't we have one island that's not developed?"

And the raindrop never thinks it is responsible for the flood.  This thinking is not limited to Hawaii, and it is common to every desirable locale (see this story from California's Sierra foothills).  I don't know about you, but I live in a house built by a "developer," on land that was once pristine.

Putting fortune-cookie philosophy aside, however, the Hawaii Supreme Court's utilization of a low standing threshold, and a nondeferential standard of review, coupled with a legal standard for secondary effects that turns the inquiry from what the development entails to why it is being undertaken, has effectively shifted the Legislature's delegation of exemption determinations from agencies accountable to the public (at least in theory), to any group that can demonstrate standing.  Thus, it appears it is now up to the Legislature to determine whether Hawaii's EA/EIS statute (Haw. Rev. Stat. ch. 343) will serve as the lever of the drawbridge to be pulled up at the command of anyone with standing, or has a more balanced role in the weighing of development versus protectionism. 

While in an island state we can't push LULU's off on neighboring but politically-distinct municipalities as suggested by Professor Boudreaux, we can push them off on other local communities.  We are beginning to see some of that on Oahu where there are disputes about landfill locations, and the placement of proposed transit stations for Honolulu's proposed $4 billion-plus rail system.  One thing is for sure: without some legislative guidance, the raw "us-versus-them" phenomenon we're witnessing in the Superferry debate is not going to be limited to disputes between islands.   

Update 10/24/2007: Professor Boudreaux has posted "The San Francisco Bay area is now closed; please move elsewhere" with more on the phenomenon.