UPDATED 10/29/11 4:50 p.m.

The Hawaii Superferry was a major embarrassment for former Gov. Linda Lingle.

The rise and fall of the controversial interisland ferry, which went out of business in 2009, became a sore point for her administration.

Lingle addressed the issue head on during a question-and-answer session after announcing her candidacy for U.S. Senate at the Pacific Club on Oct 11.

An environmental impact study has never been required of cruise ships, she said, except for the Hawaii Superferry which was “singled out.”

“I want to be clear on this point and on the record. And I want you to share this with everybody you talk to: Remember that nothing was done wrong with Superferry — nothing,” Lingle said. “Let me elaborate. Some people talk about an EIS when they talk about the Superferry. There was never an EIS required of any interisland vessel. Not before and not since, that I’m aware of.”

Is the former governor correct?

Let’s examine Lingle’s statement in two parts.

‘Nothing Was Done Wrong’

First, she said “nothing was done wrong with Superferry.”

UPDATE The Hawaii Superferry was a privately owned ship that connected Oahu and Maui. Opponents argued that the ferry threatened whales and posed other environmental threats. The ferry originally planned to service Kauai, too. But the Superferry canceled those plans after its maiden voyage in 2007 made national headlines when surfers protested and paddled into the harbor, blocking the vessel from landing for nearly two hours.1

The controversy began in March 2005 when the Hawaii Department of Transportation under Lingle exempted the carrier from having to submit an environmental impact statement. Environmentalists sued.

In July 2005, Maui Judge Joseph Cardoza initially ruled in favor of the ferry and the exemption.

Sierra Club Hawaii, Maui Tomorrow Inc. and Kahului Harbor Coalition appealed to the Hawaii Supreme Court, which unanimously ruled that an environmental study was required. As a result, Cardoza in October 2007 reversed his earlier ruling and barred the Superferry from setting sail until an environmental impact statement was finished.

Superferry officials maintained that being forced to conduct a full environmental impact statement would put them out of business.

At Lingle’s urging, the Hawaii Legislature convened in special session to pass Act 2, a law enabling the company to continue service while an environmental review was done. Lingle signed Act 2 into law on Nov. 2, 2007.

The measure permitted “a large capacity inter-island ferry” to immediately resume operations, court documents show.

Environmental groups again appealed to the Hawaii Supreme Court, which ruled in their favor in May 2009. The Superferry filed for bankruptcy two months later.

The high court concluded that the law was “enacted to accomplish the specific purpose of allowing Superferry, and Superferry alone, to operate without satisfying the requirements,” of the state’s environmental review law, according to court documents.

The court also said the state failed to do its job by exempting the Superferry from environmental review.

“DOT simply did not recognize its duty to consider both the primary and secondary impacts of the Superferry project on the environment … DOT wholly abandoned that duty by issuing an erroneous exemption to Superferry,” according to the high court’s opinion.

Russell Pang, spokesman for Lingle’s U.S. Senate campaign, told Civil Beat that Cardoza initially agreed with the exemption in 2005.

“Prior to the Hawaii Supreme Court’s 2009 Superferry decision, DOT had never been required to conduct an environmental review of privately owned vessels operating in Hawaiian waters and between the Hawaiian Islands,” Pang wrote in an email. “The Hawaii Supreme Court Superferry decision (August 2007) changed Hawaii law and historical precedents.”

Sierra Club Hawaii’s director Robert Harris disagreed.

“She is trying to say that the Supreme Court changed the law — that’s not how things work,” Harris said. “The Supreme Court interprets the law. The Supreme Court is the final arbiter of the law.”

The state auditor, Marion Higa, audited the state’s handling of the project and produced a highly critical report.

“The state’s legislative action on behalf of Hawaii Superferry Inc. compromised the state’s environmental laws and set a precedent for future government intervention that puts the interests of a single business before the State’s environmental, fiduciary, and public safety responsibilities,” according to her audit.

Because state transportation officials were concerned about the Superferry’s financial stability, they decided not to require Superferry to carry an onboard ramp, according to the audit. Harbor improvements to build a barge-and-ramp system would be provided by the state. Such improvements would normally require an environmental review.

“Faced with too little time and opposition from Hawaii Superferry, Inc., the state Department of Transportation abandoned efforts to require an environmental review for harbor improvements needed to accommodate the ferry service,” the audit stated. “Flawed EIS law and rules enabled the department to trigger its exemption determination list and bypass the environmental review.”

Bottom line: Lingle said “nothing was done wrong with the Superferry.” That’s false. The Hawaii Supreme Court twice invalidated actions taken by the state related to the Superferry. First, in 2007, it ruled that the state should not have given the Superferry an exemption to the environmental review process. The second time came in 2009 when the court ruled that the “special law” — approved by the Legislature and signed into law by Lingle — was unconstitutional. Lingle may disagree with the court, but it’s the court that gets to decide what’s right and wrong under the law, not a governor who wants to exert executive authority.

First EIS for Interisland Vessel?

Now let’s look at the second part of Lingle’s statement about the Hawaii Superferry.

Lingle said “there was never an EIS required of any interisland vessel. Not before and not since, that I’m aware of.”

State law requires an environmental assessment if one or more of nine “triggers” exists. A more comprehensive environmental impact study — or EIS — is required when a proposed project is expected to have significant environmental impacts.

Using public lands or funds for a project is one such trigger.

To accommodate the Superferry, the state spent $40 million to make improvements to Maui’s Kahului Harbor, requiring an environmental study, says Gary Hooser, director of the state Office of Environmental Quality Control.

The state manages the harbor improvements and pier construction projects, which interisland shipping companies end up using for a fee, he said.

Hooser, who was state Senate Majority Leader when the Superferry issue came before the Legislature, said the state is responsible for environmental reviews — not the private company.

“To say Matson and those guys have never done it is a bit misleading,” Hooser said. “It is misleading, because improvements are done by the state and not done by Matson and Young Brothers.”

While the state gave an exemption to the Superferry, there have been other ferry-related projects in Hawaii that did not get the same treatment.

“All user operations in the State’s commercial harbors are subject to environmental review and are covered under DOT Harbors Division environmental review process,” state Department of Transportation spokesman Dan Meisenzahl told Civil Beat in an email.

“The shippers themselves have not done an EA/EIS specifically for their vessels,” he said.

Even before the high court’s 2009 Superferry decision, the state was required to do an EIS for pier-related projects used by two different interisland ferries.

In one instance, the state transportation department worked with other state and federal agencies on an EIS for proposed construction of a new interisland ferry pier near Maui’s existing Lahaina Small Boat Harbor. According to the 529-page draft environmental impact statement dated December 2007, the harbor is the only transportation hub for Sea Link of Hawaii and Expeditions Hawaii, both Maui-based interisland ferry services serving Lanai and Molokai.

The harbor is owned by the state and the project involved state and federal funds. The environmental review said transportation improvements were needed to accommodate anticipated demand for interisland ferry services.

Other interisland shipping company projects sometimes required an environmental assessment, but did not result in a full EIS.

Matson’s proposed improvement project to its shipping yard in Sand Island underwent an environmental assessment in 1990, but the transportation department concluded that an EIS was not necessary.

In another instance, the state also determined after an environmental assessment in 2000 that Young Brothers, Ltd.’s maintenance facility project would “not result in any significant environmental impacts.”

Pang, Lingle’s spokesman, says it’s not fair to compare the Superferry to those other projects.

“These three projects are different because they involved shoreside improvements that impacted public lands and that were not ruled exempt by OEQC,” he said in an email. “Superferry barges were ruled exempt by OEQC.”

“The Superferry was a privately owned vessel operating between the islands,” Pang said. “No privately owned vessel operating between the islands (i.e. cruise ships, Young Brothers barges, Matson ships, etc.) previously required an EA or EIS.”

But Pang’s explanation doesn’t hold up.

Hooser, the OEQC spokesman, told Civil Beat: “The law says DOT is the entity legally responsible in deciding the exemption. OEQC … may have offered an opinion.”

Hooser, a Democrat who ran unsuccessfully for lieutenant governor in the 2010 primary, said his department views shoreside improvements and Superferry barges in the same way.

“I would consider shoreside improvements the same as harbor improvements,” Hooser said. “I’m no lawyer, but the barge-and-ramp system would still be considered the same. It is still a facility and state money.”

Bottom line: Technically speaking, Lingle left herself an out, by saying “there was never an EIS required of any interisland vessel” that she’s “aware of.” But her statement is misleading at best and also inaccurate. An EIS wasn’t required of the Superferry. It was required of the harbor improvements. And other harbor improvements related to ferries between Maui, Lanai and Molokai were required to undergo an Environmental Impact Statement. It should be remembered that Lingle knows Maui well. She was its mayor, after all.