Monday, October 15, 2007

Laws shouldn't be changed to suit whims

Laws shouldn't be changed to suit whims

By Larry Lee

I can live with or without the Superferry, but either way, I do not think that a special session for the Superferry is appropriate or right. We are a nation of laws and not of men. This means that the law should not be bent or changed just to suit the current whims or sentiment of some people, even if they are the majority of people.

The law is intended to apply to all people, the minority as well as the majority. The ranks of the majority and minority constantly shift with each new issue. If each time the majority feels justified to change the law to suit its purposes and wishes, we are reduced to a nation of men, not of law. The law then ceases to protect the minority.

On one issue or another and at one time or another, we will all find ourselves in the minority. It will be a terrible blow to our confidence in our system of government if, as a minority, we felt that the law will not protect our interests because the majority could whimsically change it to suit itself at any time.

Everyone needs to step away from the emotion of the issue for a while and look at the big picture. Putting the Superferry aside, our environmental law was enacted after considerable discussion, work, time and compromise by our Legislature. It has served us well for many, many years and has protected our environment. To change it for the Superferry is a mistake.

A change in the law might suit the ferry now, but may fail our environmental needs in the future. Any change in this or any existing law should be made in regular session if at all possible, with ample opportunity for full input and deliberation and without any sense of immediate urgency. Only in this way can any law truly serve the public as a whole and protect the rights and interests of everyone. A special session, in this case, is very shortsighted.

The urgency surrounding the Superferry, while seeming real at the moment, is not urgent enough to violate our nation's legal principles. While millions of dollars and 308 jobs are important and not insignificant, they become insignificant in the big picture and in view of the damage a change in the law would inflict upon the integrity and public confidence in our system of government.

The money and the job loss will eventually be absorbed by our economy. As a nation, we have absorbed and adjusted to terrible natural and man-made events, which have cost billions of dollars and countless lives. As a state, we have absorbed and adjusted to terrible events as well — hurricanes, floods, strikes, recessions and scandals. These events have involved millions of lost dollars and touched many lives. Somehow, the people, the government and our economy have learned to adjust and move on. But, we survive and move on because of our faith and respect for our system of government and laws.

The Superferry could well have avoided the current situation if the spirit and intent of the law had received the respect and attention that it deserved at the start. The environmental laws, locally and nationally, were not enacted to merely be an inconvenience. They are intended to address very important needs and to cure serious problems that will affect us, in the long run, much more than the success or failure of the Superferry.

The problem, as I see it, stems from the Superferry's decision to use a federal loan guarantee that was conditioned on having no environmental assessment/statement because of the time it took to do those studies. The next problem was that the Superferry expressed this condition to the state and the state, in its haste to satisfy and support the ferry, failed to apply the law and instead sought to justify its exemption. The state's downfall was to believe that the end justified the means and that the apparent popularity and need for the ferry would overwhelm the applicability of the law. In the end, the Superferry and state lost the gamble and the law prevailed.

Holding a special session now to change the law to accommodate the Superferry could be potentially more harmful than beneficial. Once a precedent of changing the law on the spur of the moment merely to accommodate a popular cause or business has begun, it becomes easier to do each subsequent time.

We often complain that our system is too slow to get anything done. Yet the framers of our government deliberately fashioned a system of checks and balances with the executive, legislative and judicial branches. Even the Legislature, with its bicameral system, is designed to promote slow and deliberate decisions. Wisdom should control, not emotions and transitory feelings of urgency. Each branch of government should respect the other and not try to blatantly circumvent each other.

If the Superferry can work things out and operate profitably within the requirements of our environmental law, then we all benefit. If it can't, someday there will be a ferry or other mode of transportation that can.

Larry Lee, a Kailua resident, is a former member of The Advertiser's Community Editorial Board and an attorney. He wrote this commentary for The Advertiser.