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HONOLULU – The Lingle administration has asked the Hawaii Supreme Court to reconsider its ruling last month that an environmental impact assessment should be completed before the Hawaii Superferry can operate.
State Solicitor General Dorothy Sellers argued in a motion filed Monday that the court relied on "maverick Colorado law" when it concluded a 2007 Hawaii law was unconstitutional because it was written to specifically benefit only one party, the Superferry.
The law, known as Act 2, allowed the Superferry to operate while a scaled-down environmental report was written.
"It is not fair to the Legislature ... for this court to invalidate Act 2 because this court now suddenly prefers maverick Colorado law," Sellers stated in the motion.
Sellers was referring to a 2005 Colorado Supreme Court decision. It held that a class created by a law is genuine if others can join it in the future. But a class is illusory if it can only be utilized by one interest, the Colorado justices ruled.
The Hawaii Supreme Court also relied on guidance from rulings by high courts in Nebraska and Arizona.
But even a top member of Gov. Linda Lingle's administration downplayed the chances that the Hawaii court will disavow its ruling, which was unanimous.
"I don't believe they are going to reconsider the decision and overturn themselves and say, 'Yes, we see our error now, and as such we're going to reverse our decision,' Lt. Gov. James "Duke" Aiona said Tuesday during an appearance before the Air Cargo Association of Hawaii. "I don't think that's going to happen."
A more comprehensive environmental impact review is now being conducted, but may not be finished until the end of the year.
Sellers, representing the administration of Republican Gov. Linda Lingle, also asked the court why it struck down all of Act 2 instead of invalidating the portions it considered unconstitutional while leaving other sections in effect.
The Democrat-run Hawaii Legislature also plans to file a friend-of-the-court brief asking the court to clarify how its ruling impacts legislative powers.
Critics of the Superferry said the state's reconsideration motion generally repeats arguments it earlier made to the court, and which the justices rejected in their decision.
"It appears to be a rehashing of what actually was argued in briefs or could and should have been argued before the Supreme Court" during oral arguments, said Isaac Hall, an attorney who represented environmental groups that challenged Act 2.
The Superferry catamaran Alakai has been returned to Mobile, Ala., where it was built, and its owner is seeking other uses for it. The company has said it may return to Hawaii after environmental reviews are finished and the legal cloud has evaporated.
