In an opinion it acknowledged was more symbolic than legal, the state Environmental Council said yesterday that the state failed to account for the cumulative impact of the Hawai'i Superferry when it ruled that the project's developers did not need to do an environmental impact statement.

The council acted against the advice of its attorney, who questioned whether the council has the authority to issue declaratory rulings or opinions. But several members of the council believed it was important to act to preserve the integrity of the state's environmental rules.

Robert King, a council member from Maui who owns Pacific Biodiesel, said the council had an obligation to speak because it was so obvious the Superferry project should have triggered an environmental review.

"This is not what we had in mind when we established exemptions," he said.

The council's opinion was requested this month by state Senate Majority Leader Gary Hooser, D-7th (Kaua'i, Ni'ihau), who is among several lawmakers who want the ferry operators to conduct an environmental review before service launches in July.

The Maui, Kaua'i and Big Island county councils have approved nonbinding resolutions calling for an environmental review, and Hooser said yesterday's opinion by the council may help him get lawmakers to agree to force a review this session.

"This council is made up of intelligent, articulate, thoughtful people who want to do the right thing," said Hooser, adding that he was inspired that the council felt so strongly about the opinion that it disregarded legal advice. "I think it's a powerful statement for the entire state."

The state Department of Transportation ruled that the Superferry operation does not need an environmental impact statement because the project involves only minor improvements to state harbors. Environmentalists sued the state and Superferry developers in Circuit Court over the decision and lost, with an appeal now before the Hawai'i Supreme Court.

The federal government also found that the Superferry did not need an environmental review.

Maui County and two environmental groups are suing the state over whether its 2025 master plan for Kahului Harbor adequately responds to increased activity expected with the Superferry. A Circuit Court judge has asked the parties to negotiate because of the upcoming launch of ferry service.

HEARING CALLED UNFAIR

Scott Ishikawa, spokesman for the Department of Transportation, said the department consulted with the state Office of Environmental Quality Control on the Superferry exemption. The Environmental Council advises the office on state environmental rules.

"We feel that the department has followed the process," Ishikawa said.

The Superferry developers have said they have responded to many of the issues that would likely be raised in an environmental review, developing policies to minimize traffic, the spread of invasive species and potential collisions with humpback whales.

Lisa Woods Munger, an attorney representing the Superferry operators, told the council yesterday its hearing was unfair because the Superferry company and the Department of Transportation were not adequately informed about the hearing and did not have the opportunity to give members a full briefing.

Munger also said she does not believe the council has the authority to issue an opinion. "I am amazed that the Environmental Council would make this decision without telling the Department of Transportation about the hearing or waiting to hear what it had to say," she said. "The deadline to challenge this exemption was two years ago.

"It is not right to second-guess them after hearing only one side of the story."

But the council was aware of the legal ambiguity around the opinion and felt compelled to make a statement anyway, even if only to influence public debate. Several said they feared that remaining silent would render their work on the environmental review process meaningless.

SYMBOLIC STAND

The council found the Superferry project did not meet the criteria for the exemptions it received. It also found that the state did not take into account the secondary and cumulative impact of the ferry on the environment.

"I think if we want to have an impact, we need to act now, rather than later," said David Atkin, a council member who works at an engineering firm.

Hooser and other senators believe a bill requiring an environmental review for the ferry can pass the Senate but, while there is some support in the House, state Rep. Joe Souki, D-8th (Wailuku, Waihe'e, Waiehu), the chairman of the House Transportation Committee, has said it is unfair to single out the Superferry operation for a review.

"I'm not influenced at all," Souki said last night of the council's vote. "At this point, I will not hear it."

Reach Derrick DePledge at ddepledge@honoluluadvertiser.com.