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The Honolulu Advertiser
Posted on: Wednesday, March 18, 2009

Ruling felt far beyond Superferry

By Jerry Burris
Advertiser Columnist

Say what you want about the Hawai'i Supreme Court decision that at least temporarily shut down the Hawaii Superferry, this much is for certain:

It changes the rules of the game substantially for lawmakers who think they can tinker with, or manipulate, the state's economy.

The bad news? Some lawmakers will feel intimidated about taking bold or adventurous action to help what everyone agrees is a struggling economy. Why stick your neck out only to get slapped down by the state's highest court?

The good news? The court reaffirmed that rules are rules, not only for the little guy but even for the biggest and most politically connected.

Now some will say this ruling slams yet another blow against Hawai'i's already poor reputation as a place to do business. For all its efforts to put another form of interisland transportation into place, Hawaii Superferry was undone by activist environmentalists and what some see as their ideological friends on the court.

It would not be a surprise if the owners of the Superferry simply hang it up, say aloha to the Islands and take their entirely moveable hardware somewhere else on the globe where ocean transportation is not only needed but also wanted.

Still, the ruling is a blow for consistency and predictability. The court said the regulatory system in the Islands — like it or not — cannot be willy-nilly changed on case-specific basis. If you are in business, this counts for a lot. It means you can make decisions, safe in assuming that the rules will not be changed midstream, whether to benefit you or harm a rival. Over and over again, business leaders have said that their primary problem with our business climate is not regulation per se, it is the lack of predictability.

Senate President Colleen Hanabusa says she is worried that the ruling, while specific to the Superferry, might dissuade lawmakers from writing other laws designed to resolve specific problems or handle specific events. She is undoubtedly correct.

But that's not necessarily a bad thing. In these difficult economic times, there surely will be all sorts of one-of-a-kind ideas presented to the Legislature as a way out of our difficulties. Many will include the idea that a special exemption or special rule needs to be put into place.

Now more than ever, lawmakers will have to think clearly about whether such ideas — no matter how good they sound — really make sense in the larger scheme of what we want Hawai'i to be and how we wish to get there.

Jerry Burris' column appears Wednesdays in this space. See his blog at blogs.honoluluadvertiser.com/akamaipolitics. Reach him at jrryburris@yahoo.com.