Justices on the state Supreme Court pressed attorneys for the state and environmentalists yesterday to explain whether a state law that allows Hawaii Superferry to operate during an environmental review could potentially apply to other ferry companies.

The Sierra Club, Maui Tomorrow and the Kahului Harbor Coalition have challenged the law as unconstitutional special legislation written only for Superferry. The state contends that other ferry companies could conceivably be covered by the law and that the entire state benefits by having an alternative form of interisland transportation.

The justices heard arguments yesterday and have taken the case under advisement. A ruling could determine whether Superferry can continue to operate between the Islands or whether service should stop for a new environmental review.

Justices seemed particularly interested in whether other ferry companies could benefit from the new law passed in special session last year. The new law was in response to the court's ruling in August 2007 that the state should not have exempted the Superferry project from environmental review. The ruling led to legal challenges on Maui and public protests on Kaua'i that halted ferry service.

State lawmakers drafted the new law to allow a "large capacity ferry vessel" to operate while the state conducts an environmental review under guidelines that are similar, but not identical, to the state's environmental review law. A draft environmental review could be released early next year and the review must be completed before next summer, when the law expires.

"Is there a possibility that, within the time allowed under this statute, that other entities could fit ... into this classification?" Associate Justice Simeon Acoba asked.

"I don't believe so at all," replied Isaac Hall, the attorney for the environmentalists. "I don't believe that under any circumstances is there any other entity that could fit into this classification. It's clearly a closed class."

Associate Justice Paula Nakayama and Acoba asked Lisa Ginoza, the deputy attorney general representing the state, whether any other business was covered by the law or had a signed operating agreement with the state, like Superferry, to use ferry-related improvements at state harbors.

"I think the point is that that operating agreement, as well, contemplates that other ferries could in fact come here," Ginoza said. "(The new law) also contemplates the use of the harbor improvements by others."

Hall told justices that environmentalists are entitled under the court's August 2007 ruling to an environmental assessment under the state's environmental review law, not what he called the "pseudo-EIS" now being drafted.

Ginoza countered that state lawmakers and Gov. Linda Lingle were representing the public interest with the new law.

"(The new law) specifically balances the public need for an innovative and alternative mode of transportation, with the environmental concerns that people raised throughout this litigation," she said. "So the Legislature specifically chose to act in this situation to speak on behalf of the entire state. It is perfectly within their authority to do so."

Attorneys and legal observers caution against predicting the potential outcome of a case based on the justices' questions during oral arguments. But observers thought two legal threads that emerged during yesterday's questioning were interesting.

Chief Justice Ronald T.Y. Moon asked whether the court's 1967 ruling in Bulgo vs. County of Maui, a key plank in the state's argument, needed to be corrected. The court had ruled it was constitutional for the Legislature to pass a law tailored for Maui calling for a special election to replace the chairman of the board of supervisors, who had died after re-election but had not started his new term.

The court found that even though the law was clearly drafted in response to the situation on Maui, Kaua'i and the Big Island could have theoretically been covered.

Associate Justice Acoba, meanwhile, asked about the standard in People vs. Canister, a 2005 ruling by the Colorado Supreme Court involving the death penalty. The Colorado governor had called state lawmakers into special session to respond to a U.S. Supreme Court decision that struck down an Arizona law where judges, rather than juries, determined whether criminals should receive the death penalty or life in prison. Colorado had a similar sentencing law.

Colorado lawmakers quickly passed a new law returning sentencing discretion to juries so there would be no hiatus in potential death penalty cases where defendants had been convicted and were awaiting sentencing. But the Colorado Supreme Court ruled that the law was unconstitutional special legislation because it would have only ever applied to two defendants.

The Colorado court's standard was whether the class created by the legislation was genuine or illusory. Lawmakers could have a specific entity in mind when drafting legislation, the court found, if in the future the law could also apply to others. It is unconstitutional special legislation, the court held, if drawn only for the entity targeted.

After the arguments, Ginoza and Hall declined to speculate about how the court might rule. John Garibaldi, Superferry's vice chairman, also chose not to discuss how Superferry might respond to an adverse ruling.

If the court rules in favor of the environmentalists, Superferry could possibly have to halt service while the state prepares a new environmental assessment under the state's environmental review law, which could take another year.

"With regards to the state, the legislation essentially becomes invalid," Ginoza told reporters. "What that does with regards to the ferry, I don't know. The company will have to, I suppose, determine whether it can stick around to comply with the old law.

"So I think it leaves it very unclear whether in fact the company will stay in Hawai'i."

Hall said the Superferry should have to suspend service pending a new environmental review. "It could be awhile," he said. "But it's only fair to all the other people in the state of Hawai'i that are currently complying with (environmental law). I think that's the problem with special legislation, when you say, 'Everybody else in the whole state of Hawai'i has to comply with (environmental law), but not Superferry.'"