Environmentalists from Maui warned state lawmakers yesterday of the potential for irreparable harm if they allow Hawaii Superferry to resume service before an environmental review is conducted.

But the environmentalists acknowledged that a special session is likely and recommended 29 operating conditions to be part of any Superferry legislation that is passed. Those conditions include keeping ferry speeds at 13 knots in shallow water to protect whales and other marine mammals and washing the undercarriages of vehicles to prevent the spread of invasive species.

Environmentalists also want lawmakers, not the Lingle administration, to set the conditions because they do not trust the administration to impose adequate restrictions.

"We are totally opposed to this bill. We do not want to see it passed," said Isaac Hall, the attorney for Maui Tomorrow, which was among the groups that persuaded the state Supreme Court that an environmental review of the project is necessary. A Maui court ruled that Superferry could not use Kahului Harbor on Maui until the review is completed.

"It's going to strip us of the victory that we won in the Hawai'i Supreme Court," Hall said. "It's going to strip us of the victory that we won with Judge (Joseph) Cardoza. It's going strip the outer islands of the protections that we have through" state environmental review law.

Hall said they believe the draft legislation to help Superferry could be unconstitutional and that he and his allies could challenge in court any law that is passed.

State Senate President Colleen Hanabusa, D-21st (Nanakuli, Makaha), said lawmakers will take the Maui environmentalists' recommendations into consideration. Lawmakers also hope to hear suggestions from people on the Neighbor Islands in informational briefings before a possible special session begins Wednesday.

"First of all, I want to say that the most important thing is that they're willing to talk. And I think that that goes a long way," Hanabusa said. "And the fact that, yes, of course, they're not pleased with the bill, they're not pleased with the fact that we're even considering doing the special session, but that is to be expected. After all, they did win."

RESTRICTIONS SOUGHT

Lawmakers have said that the Lingle administration should impose the operating conditions but have set guidelines in draft legislation to protect whales and other marine mammals, prevent the spread of invasive species and preserve cultural and natural resources. The draft also suggests that Lingle place agricultural inspectors and conservation officers on each ferry voyage, one of the recommendations on the Maui environmentalists' list.

Lawmakers also said that the Lingle administration has enforcement powers while the Legislature, through the help of a proposed community oversight task force, would have oversight responsibilities and could add conditions later.

Some environmentalists said privately that the sheer number and scope of the recommendations could fuel suspicions they are being unreasonable, but they believe they are justified because lawmakers are considering an extraordinary bailout for Superferry.

"Our feeling is that this cannot be delegated to the Lingle administration, which has shown total insensitivity and lack of care for our environment," Hall said. "If the Legislature wants to take the action, and they're the only entity that can take the action to allow the Superferry to sail, it is the Legislature that's got to take the responsibility to protect us."

'REALITY HAS CHANGED'

Jeff Mikulina, director of the Sierra Club Hawai'i chapter, had initially said he would not be suggesting conditions because he disagreed on principle with a special session to help Superferry. But Mikulina said yesterday that he would likely be speaking with lawmakers about conditions.

"The reality has changed," Mikulina said. "If the Legislature is going to step in and reverse what the courts decided, they have a responsibility to at least protect the environment."

State Sen. J. Kalani English, D-6th (E. Maui, Moloka'i, Lana'i), said even if lawmakers do not add the Maui environmentalists' conditions to the draft, they could still be used to judge what the Lingle administration later imposes. "This becomes the bar. This becomes the test," English said.

State Senate Minority Leader Fred Hemmings, R-25th (Kailua, Waimanalo, Hawai'i Kai), predicted some lawmakers will attempt to load the draft with conditions to try to break the consensus in the House and Senate. He also said it was hypocritical for lawmakers to demand conditions now when many backed a 2004 resolution praising the Superferry project and urging the state and federal governments to give it speedy approval.

"This isn't about the environment. It's about the duplicity of the environmental extremists," Hemmings said.

Anticipating legal questions about special privileges and constitutional challenges, House and Senate attorneys have drafted the legislation so that it describes a ferry project but does not specifically identify Superferry. Hanabusa said attorneys looked for guidance in the 1992 U.S. Supreme Court ruling in Robertson vs. the Seattle Audubon Society, a case involving timber harvests and the endangered northern spotted owl.

Environmentalists had sued alleging that timber harvests in forests managed by the U.S. Fish and Wildlife Service and the federal Bureau of Land Management threatened the spotted owl.

Congress, in response to the lawsuits, added provisions to an interior spending bill that required timber harvesting in the forests and expanded harvesting rules. Environmentalists argued that the provisions were an unconstitutional violation of judicial power because Congress directed results in their ongoing legal cases without changing the underlying laws they were challenging.

The Supreme Court, however, found that Congress did not direct results under the old law but replaced the legal standards with new provisions.

PRIVATE DISCUSSIONS

The Superferry draft is similar in that it creates a new law to address ferry service rather than amend the state's existing environmental review law.

Hanabusa, state House Speaker Calvin Say, D-20th (St. Louis Heights, Palolo Valley, Wilhelmina Rise), and other House leaders met privately yesterday afternoon to discuss the latest draft with state Attorney General Mark Bennett and Linda Smith, Lingle's senior policy adviser.

Hanabusa and Say said afterward that the proposed changes to the draft so far are largely technical, although Superferry and the Lingle administration have raised some substantial objections.

Bennett and Smith declined to comment. Bennett explained to reporters that he did not want to negotiate through the news media.

Superferry executives, according to Hanabusa and Say and a source familiar with the Superferry's position, are concerned about draft language relating to an "explicit and comprehensive indemnity clause" for any new operating agreement with the state. The clause would shield the state from lawsuits by the Superferry for delays in ferry service caused by court actions.

Superferry executives are generally in agreement with indemnity language as it applies to the entire draft, but question why they should have to give up their rights to sue if sections are later found to be invalid by the courts and damage their ability to operate. The draft contains a severability clause that would, if one section is held invalid, protect other provisions of the bill.

The Lingle administration, according to Hanabusa and Say, are questioning the draft provision requiring the state auditor to investigate the administration's handling of the Superferry project, including the February 2005 decision by the state Department of Transportation to exempt the project from an environmental assessment.

Several lawmakers have called for an investigation because Lingle has not acknowledged that the decision was an error — as the state Supreme Court ruled in August — and because they believe the administration has not fully explained its legal justification for the exemption. While the administration did not comment yesterday, other Republicans have described the call for such an investigation as political.

"I was very candid with the attorney general that what we had yesterday (with the draft) was a compromise between the House and Senate," Say said, adding that if Bennett wanted to push "the administration's agenda, then he could unravel this whole thing."

Reach Derrick DePledge at ddepledge@honoluluadvertiser.com.