An opinion out of the Hawaii Supreme Court and a remarkable concurrence by Justice Michael Wilson provide a striking example of how state constitutions can enable courts to engage seriously with climate change. In contrast to what Wilson calls the “stark failure” of federal courts to address legal claims related to the growing climate emergency, Hawaii’s high court confronted it head-on in In re Hawai’i Electric Light Co.
The case concerned an effort by the company Hu Honua to obtain regulatory approval to supply energy to Hawaii Island by establishing a biomass power plant that would primarily burn locally grown eucalyptus trees. Hawaii’s Public Utility Commission originally approved the plan, but on appeal in 2019, the state supreme court remanded the case to the commission for additional consideration of the potential greenhouse gas emissions and other impacts on Hawaiians’ “right to a clean and healthful environment” under the state constitution. That provision, added to the state constitution in 1978, explicitly provides individuals with a right to sue. In 2017, the state supreme court determined that individuals also have a right to assert their environmental interests in proceedings before the Public Utility Commission.
With these considerations in mind on remand, the commission ultimately denied approval for the plan, and in March, the high court affirmed the decision. The court noted that the commission’s second-guessing of Hu Honua’s promises of carbon neutrality was not only appropriate but required by the constitution. Further, the court wrote, while the commission’s analysis may have been more rigorous than in the past, that change was also appropriate given that Hawaii declared a climate emergency in 2021, and “the reality is that yesterday’s good enough has become today’s unacceptable.”
Justice Wilson, who previously served as the state’s director of the Department of Land and Natural Resources, amplified the majority’s concerns and expanded on the state constitutional basis for the decision in his concurrence. He would have ruled that the “right to a life-sustaining climate system” is not only protected by the constitutional right to a healthful environment but also by the state constitution’s due process protections for “life, liberty, [and] property” and its public trust doctrine mandating the preservation of Hawaii’s natural resources for future generations.
Examining the state’s due process clause, Wilson first noted that Hawaii courts have long recognized that the clause protects substantive as well as procedural due process. A right is protected, he wrote, if it is “so rooted in the traditions and collective consciousness of our people” that failure to recognize the right would strike at the foundation of society. Environmental rights meet that test, he concluded, as “it is beyond cavil that a life-sustaining climate system is implicit in the concept of ordered liberty and lies ‘at the base of all our civil and political institutions.’” In fact, Wilson observed, citing statements by the United Nations and the Paris Climate Agreement, the climate emergency is an existential threat to the state and all humanity — a global human rights issue.
Wilson argued that the public trust doctrine in the Hawaii Constitution likewise requires a proactive stance by the government to ensure that natural resources are preserved for future generations. The commission acted consistently with that obligation, Wilson determined, when it scrutinized Hu Honua’s application and prioritized the need to reduce greenhouse gas emissions above the corporation’s desire to move forward with its plan.
The concurring justice, who will retire in April, also surveyed the federal court decisions that have repeatedly rejected the claims of climate activists. In West Virginia v. EPA, he noted, the U.S. Supreme Court “deprived the federal Environmental Protection Agency of ‘the power needed — and the power granted — to curb greenhouse gases’ from power plants.” A federal district court dismissed a nuisance claim against fossil fuel companies as nonjusticiable because the remedies needed were too “vast” and political. And in the case of Juliana v. United States, the Ninth Circuit Court of Appeals denied standing to young people seeking to hold the federal government accountable for failing to meet environmental goals. The “clear message to young people and future generations who seek protection from knowing environmental damage to a life-sustaining environment,” Wilson concluded, is that “they have no standing to seek redress in the federal courts of the United States.”
State courts, meanwhile, are actively entertaining claims in cases such as Held v. Montana, in which future generations of Montana residents seek to enforce environmental rights under the Montana Constitution. A trial is set for June. For these pending state court cases, the Hawaii Supreme Court’s decision and Justice Wilson’s concurrence light one way forward as the climate emergency accelerates, looking to substantive due process, the public trust doctrine, and state constitutional environmental provisions.
Martha F. Davis is a university distinguished professor at Northeastern University School of Law. The views expressed are the author’s own and not necessarily those of the Brennan Center.