On March 16, the state Supreme Court issued a decision in Sierra Club v. Department of Transportation, effectively requiring Superferry to terminate operations under the Hawaii Environmental Protection Act.

Superferry terminated its operations and employees and sent Alakai to the Mainland. The tragedy is palpable. After eight years of raising capital, building award-winning ferries and ramps, dealing with bureaucracy and fending off activists, Superferry is make die dead.

GET USED TO IT

Ferries are a key to our sustainability and to efficiently and economically connect our islands. Every water state has ferries — Hawai'i is way behind. Was there a good reason to kill Superferry? Its death is a disaster, worse in that we just lost Aloha Airlines.

Superferry was killed by a handful of activists whose motivations were not necessarily environmental. Early on, these activists targeted Superferry for destruction, disregarding what most people wanted and ignoring similar issues for other interisland shipping firms. It was laser-like, and visibly unfair.

Take a look at the recent anti-ferry letters from Kaua'i's JoAnn Yukimura and others. The ferry is dead, you guys. Why do you dance on its grave? Are you now trying to rationalize your part in bringing it down? Did anything it did justify the loss we have suffered?

SHOOTING OURSELVES

Relax. Superferry is gone and it's not coming back. Can you imagine the money they lost? Forbes' view of our anti-business climate is again demonstrated, and this black eye will last a very long time. Entrepreneurs and investors, from Maine to Mexico, have been well and truly warned. Kick me over and over, and I say sayonara.

One day your kids will ask, "who killed Superferry?" Tell them it was really all of us, and we had trouble learning that no business can survive if it must spend all its time struggling with bureaucracy and activists.

Instead of celebrating Superferry's contributions, we had the most divisive experience the land of aloha has ever seen — interisland separatism, and gigantic concerns spun up over imaginary risks, government conspiracies and military manipulations. It wasn't pretty. Ho'oponopono will be long in coming.

IMBALANCE OF POWER

When activist organizations get together, they are well-fueled and powerful. When they litigate and lobby together, they become intimidating. When asked what Sierra Club focused on, Jeff Mikulina said, "we stop things." Stopping Superferry was a war that lasted for years. In the end, it was a notable victory for the activists, whether or not deserved.

The EIS does help protect our environment. But it's also every activist's favorite weapon, and a blockbuster at that. The first step is to require an EIS for a project. The next step is to argue with the EIS, in both draft and final, in and out of court. That takes years and costs really big money. With good cause, the term EIS strikes fear into anyone building anything.

But were the activists really interested in the EIS findings, or just bent on stopping the ferry? Would they have been satisfied with an EIS that permitted the ferry to operate? No. It's not a question of finding impacts, only keeping the game in play until the project bleeds to death.

Because an entrepreneur follows the rules doesn't mean the activists won't attack him anyway. Once targeted, you get the full monty. Things become distorted and desperate. If you have no upstairs access, you're at the mercy of the bureaucracy, which freezes in the headlights. That being the case, activists can stop any project they like.

IMBALANCE OF POWER

In 2000, the Sierra Club sued to force the Hawai'i Tourism Authority to perform an environmental assessment before going forward with a contract to market Hawai'i to tourists. Bob Fishman, HTA's executive director, called the suit "ridiculous" and said HEPA was meant to study the impacts of major infrastructure construction like bridges and roads. The case was dismissed on standing, but the activists and courts have gone much further since then.

Activists are certainly becoming more aggressive. Is it environmentalism or something else? Michael Fox, writing for the Grassroot Institute, quotes Patrick Moore, founder of Greenpeace, to say that the new activists are more extreme and tend to be anti-science, anti-trade and anti-business. Superferry's death would bear that out.

Superferry's not the only one in the cemetery. There are many hair-raising stories of law-abiding firms that failed or left town for the same reasons or, having observed from afar, never came here in the first place.

ROLLING IT BACK

In 2007, the Supreme Court held that although DOT's customary procedure was to grant exemption after considering only primary impacts, DOT could not exempt Superferry unless it also considered "secondary" or "indirect" impacts. That decision changed everything.

The term "secondary impact" is not in the statute. HEPA was intended to cover only things directly affected by government action. This decision expands it to cover private activity indirectly resulting from that action. It's a huge change, and opens a floodgate of opportunities for activists.

Michael Lilly, former state attorney general, feels that DOT was right — its Maui pier improvements did not have impact sufficient to require an EIS. He feels the Supreme Court was wrong to impose the secondary impacts test. The burdens created for Superferry offends his sense of fairness — what about other ships, why not them, too? And how about other government projects, like rail — they are all in jeopardy.

Lilly feels HEPA is tougher than the environmental laws in other states and tougher than it needs to be. He wants the Legislature to take control of and return HEPA to the way it was intended, without the secondary impacts test. He has written to The Advertiser, the entire Legislature, the lieutenant governor and the attorney general, hoping they will push for this change.

THE REAL CHALLENGE

Can the silent majority afford to be silent? This imbalance won't go away by itself. If we are to have thoughtful policy and decent government, we must have countervailing power on these issues. This is the end of a game we may already have lost.

We could ignore these issues and hope that someone will beat a path to our door and make another ferry. But that won't happen anytime soon. We've damaged our reputation, and it won't be easy to recover from what we've done.

We could support Michael Lilly's bill now or in a special session. Perhaps that would convince Wall Street that we have found the error of our ways and they'll come back and trust us well enough to try to build a ferry again.

Or, we could just wait for the activists to build a ferry.