A watershed victory promotes an expansive interpretation of R2HE – one that includes a stable climate.
Credit: nameinfame, stock photo ID 483370961
Casebook Info
In a decisive and unanimous ruling, Hawai’i’s highest court issued a landmark decision, rejecting a power purchase agreement between Hawai’i Electric Light Company and Hu Honua Bio Energy LLC. The majority opinion highlighted the State of Hawai’i’s constitutional obligation to safeguard the right to a clean and healthy environment (R2HE). The Court stressed that R2HE included the right to a “life sustaining climate system” and was “not just affirmative; it is constantly evolving.”
Justice Wilson’s concurring opinion went further, stating that R2HE and a life-sustaining climate system are subsumed in the due process right to “life, liberty, and property” and the Public Trust Doctrine. The doctrine requires conserving and protecting natural resources “for the benefit of present and future generations.”
This case demonstrates how courts can wield R2HE to support governmental bodies, such as state agencies, to enact and enforce environmentally sound laws and policies. It is a prime example of how R2HE can help justify such policies, even when they may impact corporate profits.
Year Filed
2017
Year of Most Recent Ruling
2023
Year of Final Ruling
2023
Jurisdiction
United States of America - Hawai‘i
Court Name
State Supreme Court
Plaintiff(s)
Hawai’i Electric Light Company, Inc. & Hu Honua Bio Energy LLC
This case concerned the Public Utilities Commission’s (the Commission) denial of a proposed Power Purchase Agreement (PPA) between an energy company, Hu Honua, and the Hawai’i Electric Light Company, Inc. The PPA proposed the development of a biomass power plant, where Hu Honua would burn biomass—mainly locally grown eucalyptus trees—to create energy, and the Hawai’i Electric Light Company would purchase that energy. Over 30 years, the power plant was estimated to emit approximately 8,000,000 metric tons of CO2.
The Commission was responsible for determining whether to approve the PPA, guided by the criteria outlined in the state statute defining the right to a healthy environment (R2HE) and the assessment of energy projects. The Commission held hearings and issued a series of decisions starting in 2017, first deciding in favor of the PPA. However, in 2019, the Hawai’i Supreme Court overturned the Commission’s decision and ordered a new hearing. This time, the Commission was to “meaningfully address the impacts” of approving the PPA on the community’s R2HE.
The Commission complied and engaged in a “public interest-minded balancing” test, considering factors including greenhouse gas emissions, consumer price spikes as well as hidden and long-term consequences. It ultimately rejected the PPA following a contested hearing in 2022. Hu Honua appealed the Commission’s decision to the Hawai’i Supreme Court, claiming that the Commission should not have (1) considered prices; (2) compared Hu Honua’s project to other fossil fuel projects; and (3) violated Hu Honua’s due process rights.
In a unanimous decision, the Hawai’i Supreme Court decisively dismissed Hu Honua’s arguments and upheld the Commission’s decision. First, the Court rejected Hu Honua’s assertion that according to HRS § 269-6, the Commission’s “public interest-minded balancing” test could not consider the project’s pricing relative to its greenhouse gas emissions. The Court refuted the argument that the test was constrained to comparing Hu Honua’s renewable energy project only to fossil fuel-based alternatives. Second, the Court rejected Hu Honua’s contention that the Commission violated its due process rights. The Court determined that the Commission met its state constitutional duty to safeguard the right to a healthy environment (R2HE) by conducting fact-finding and evaluating the information presented by Hu Honua, which it was entitled to find unpersuasive.
Moreover, the majority clarified that the Commission did not adopt a new ‘carbon neutrality’ standard, which it could have done. Because the constitutional R2HE subsumed the “right to a life-sustaining climate system,” the Court explained, the Commission was under a constitutional duty to evaluate the proposed PPA in light of the increasingly pressing risks posed by climate change. It did so properly.
The majority clarified that the Commission did not institute a new ‘carbon neutrality’ standard, which it had the authority to do. The Court explained that since the constitutional R2HE encompasses the “right to a life-sustaining climate system,” the Commission was constitutionally obligated to assess the proposed PPA, considering the growing risk that climate change poses. The Commission fulfilled this obligation properly.
8,000,000 metric tons
The projected CO2 emissions from the proposed power plant
350 ppm
The CO2 concentration, in parts per million, which Justice Wilson held was “essential” to prevent the worst impacts of climate
419 ppm
Atmospheric CO2 concentrations measured at Mau Loa as of May 2021
Plaintiff Strategies & Court Good Practices
Using an established domestic body of law
Much of the plaintiff’s argument rested on its interpretation of HRS § 269-6(b), the primary statute governing the Commission’s evaluation of energy projects. The plaintiff specifically contended that the language of HRS § 269-6(b) and its 2021 revision limited the Commission’s ability to conduct a “public interest-minded balancing” test when assessing whether to approve a project. According to the plaintiff, the Commission was prohibited from considering project prices and could only compare proposed renewable energy projects, such as the one in question, against fossil fuel projects. Nor could the Commission analyze how a renewable energy project might displace other forms of renewable energy. Based on this interpretation, the plaintiff argued that the Commission acted improperly by comparing the plaintiff’s project to non-fossil fuel projects and evaluating its displacement of other energy sources.
The Court disagreed with the plaintiff’s argument. It also cited established Hawaiian environmental law and the legislature’s original intent behind HRS § 269-6(b) to assert that the plaintiff’s interpretation of the statute would lead to a “blinkered approach.” The Court also highlighted the Commission’s firmly established “duty to act in the public interest” and concluded that, during its analysis, the Commission “understood its public interest-minded mission.”
Similarly, the Court emphasized Article XI, Section 9 of the Hawai’i Constitution (1978): “Each person has the right to a clean and healthful environment.” Notably, the Court directly linked Hawai’i’s constitutional R2HE with HRS § 269-6(b), explaining that HRS § 269 delineated the necessary measures to protect R2HE. In other words, by invoking the State’s constitutional duty to protect R2HE, the Court found that HRS § 269-6(b) could not logically limit the Commission’s analysis. Accepting such an interpretation of HRS § 269 would imply that the Commission would render it impossible to “perform its statutory function in a manner that fulfills the State’s affirmative constitutional obligations.”
Expansive reading of the scope and content of R2HE
The Court’s definition of R2HE as encompassing “the right to a life-sustaining climate system” carries substantial implications. This groundbreaking recognition is the first instance in the United States where a court has acknowledged such a right, setting a precedent for future cases to utilize R2HE as a pivotal tool in combating the climate crisis.
In this case, affirming the Commission’s responsibility to safeguard a life-sustaining climate system regarding R2HE bolstered the Court’s interpretation of HRS § 269-6(b). Furthermore, the plaintiff’s suggested narrow reading of the statute, which would confine the Commission to comparing renewable energy projects solely with fossil fuel projects, would contradict the Commission’s duty to safeguard the climate system; “drawing a hard line between fossil fuel and renewable energy, […] elides a crucial fact — producing biofuel, unlike producing other kinds of renewable energy such as solar or wind, emits high quantities of [greenhouse gas (GHG)] emissions.” Therefore, the Court reasoned, “commanding a public agency charged with protecting the right to a life-sustaining climate system to disregard GHG emissions from a particular type of fuel source would undermine HRS Chapter 269.” As a result, the Commission would invariably violate its statutory and constitutional duties.
The Commission’s duty to protect a life-sustaining climate system also allowed the Court to inform the interpretation of HRS § 269-6(b) with climate-related laws that articulate the State’s commitment to ambitious and urgent climate policies. Specifically, the Court highlighted the relevance of HRS § 225P-5, which “sets a state policy of achieving carbon neutrality ‘as quickly as practicable, but no later than 2045.’” The Court asserted that the plaintiff’s limited interpretation of HRS § 269-6(b) did not align with the legislature’s urgency on climate, as evidenced in HRS § 225P-5.
Notably, the Court did not stop there and clarified that “the right to a life-sustaining climate system is not just affirmative; it is constantly evolving.” The Court referenced the declaration of a climate emergency by the people of Hawai’i and highlighted the diminishing opportunities to mitigate the impacts of climate change. In light of the rapidly compounding climate change, the Court reasoned that for the Commission to fulfill its constitutional duties, it was obligated to adapt its analysis compared to when it initially approved Ho Honua’s project. “Yesterday’s good enough has become today’s unacceptable,” it emphasized.
Going even further, Justice Michael Wilson emphasized in the concurrence that the right to a life-sustaining climate system was also included in the due process right to “life, liberty, [and] property” enumerated in the Hawai’i Constitution, and mandated the State of Hawai’i “conserve and protect Hawai’i’s […] natural resources […] for the benefit of present and future generations.” As a life-sustaining and stable climate is “the foundation upon which society and civilization exist,” Justice Wilson held that preventing greenhouse gas emissions was fundamental to continuing the rule of law – a new concept that the Justice coined “climate rule of law.” Given the threats of climate change, the right to a stable environment was fundamental to Hawai’i’s other constitutional guarantees. On this basis, Justice Wilson held that the right to a life-sustaining climate system is “deserving of fundamental status as essential to our scheme of ordered liberty because it is preservative of all rights.”
Focusing on youth
While neither party focused on youth, the Court’s analysis of the State’s duty, vis-à-vis R2HE, to fulfill a life-sustaining climate system brought the temporal aspect of climate change to the forefront. In addition to underscoring the cumulative effects of climate change and the need for prompt climate action, as described above, the court stressed the importance of “reduc[ing] emissions now, before the damage done to the environment is irreversible — before action becomes impossible for future generations.”
Emphasizing the State’s duty to regulate or its failure to observe its due diligence obligations
Throughout the opinion, the Court underscored the Public Utilities Commission’s responsibility to fulfill its constitutional and statutory obligations by conducting its “public interest-minded balancing” test. Contrary to the plaintiff’s contention, the Court held that, in applying the test, the Commission “acted appropriately within its role as a fact-finder when it assessed Hu Honua based on its statements and promises and ultimately found them unconvincing.” The Court concluded that the Commission had not fabricated new facts or embraced a novel ‘carbon neutrality’ standard, even though it had the potential to do so. The plaintiff’s argument alleging a violation of due process rights was therefore deemed void.
Methods for ensuring baseline protections
The Court primarily evaluated the appropriateness of the Commission’s actions by verifying its thorough consideration of each factor – ranging from greenhouse gas emissions to price volatility – encompassed in the “public interest-minded balancing” test, as mandated by HRS § 269-6. The Court concluded that the Commission was able to properly fulfill its R2HE duties through the proper application of this standard.
The Court also highlighted standards that could not serve as a means to achieve baseline environmental protection. It clarified that “good faith is not a sufficient metric” for environmental protection. Therefore, it concluded that the Commission properly rejected the plaintiff’s argument that its non-binding “good faith” lease negotiations with “reputable sources.” A crucial aspect of the project’s carbon sequestration and its classification as “renewable” relied on offsetting its emissions through tree planting.
Shifting the presumption proving adequacy of actions
While the Court did not change the presumption of evidence in its proceedings, it affirmed that the burden of proof in the Commission’s proceedings was on the plaintiff. Therefore, the plaintiff’s complaints regarding the Commission’s lack of conviction in its expert testimony and failure to present its own expert were unfounded. The Court clarified, “Hu Honua misunderstands its evidentiary burden; it had to persuade the [Commission], not the other way around.”
Take Aways
This case illustrates how courts can wield R2HE to support governmental entities, in this case a state agency, in their pursuit of enacting and enforcing environmentally sound laws and policies. This case exemplifies that R2HE can provide a basis for justifying such policies, even in the face of potential impacts on corporate profits.
The case is also a rare example of a United States court taking a bold stance on a state’s constitutional obligations on climate change through R2HE. This decision is in stark contrast to decisions at the federal level in the United States, such as the Supreme Court’s decision in West Virginia v. EPA (2022).
Terms
Strategy
Emphasizing the State's duty to regulate or its failure to observe its due diligence obligations
Invoking a government’s affirmative obligations under national and/or international law to regulate and implement policy to advance and monitor the protection of R2HE. One common instance of this strategy appears in the climate change context, where a plaintiff might argue that the government has taken insufficient action to mitigate climate change or reduce emissions. Another common context is that of corporate pollution, which might prompt a plaintiff to argue the government did not do enough to ensure a polluter’s compliance with environmental standards.
Strategy
Focusing on youth
Emphasizing the disproportionate and inequitable vulnerability of young people, children and/or future generations to climate change, biodiversity loss and environmental degradation. This emphasis is often articulated through the principles of Intergenerational Equity and Sustainable Development, which generally provide that governments and other entities must ensure the basic needs and rights of future generations when making decisions that bear on the environment. Additionally, the principles suggest that all individuals have a responsibility to care for future generations by limiting environmental degradation and consumption in the present.
Strategy
Using an established domestic body of law
Invoking well-established national laws, norms and/or legal principles in support of arguments related to R2HE. Where R2HE is present in a country’s constitution, the constitution will serve as the primary authoritative source for the right. Other, secondary sources of established domestic law commonly include statutory law and requirements governing public participation and/or the assessment of environmental risks. Environmental principles enshrined in domestic sources of law – for example, the precautionary principle – may also be emphasized to further the protection of R2HE.
Good Practices
Expansive reading of the scope and content of R2HE
An expansive definition of R2HE refers to the broad and inclusive nature or interpretation of a particular concept, document, principle or legal provision related to R2HE. Legal definitions of the complex R2HE and associated concepts often lack specificity as applied to real-world circumstances, leading many courts to ‘fill in the gaps’ by situating the right within wider contextual frameworks of law, policy and science. As the triple planetary crisis of climate change, biodiversity loss and pollution intensifies, courts are increasingly reading the scope and content of R2HE broadly to address a growing variety and number of environmental harms. By providing inclusive and robust definitions of guarantees associated with the right – for example, by confirming R2HE ensures a safe climate, protects biodiversity and/or entails a duty to regulate – courts can help to ensure and further the right’s protections and utility.
Good Practices
Methods for ensuring baseline protections
Courts have employed various strategies, mechanisms and approaches to establish fundamental environmental safeguards, minimum standards and/or quality levels which are necessary to guarantee R2HE. These approaches aim to ensure a basic level of protection for individuals, communities and/or the environment. Further, courts have developed various methods to assess the appropriateness of government and corporate action relative to the baseline environmental standards. These methods can vary widely in form and across jurisdictions, but may take the form of a presumption in favor of the environment, the examination of long-term consequences or the application of environmental principles like that of non-regression.
Good Practices
Shifting the presumption proving adequacy of actions
Shifting the presumption implies altering the standard or default position typically held by one party to demonstrate that their actions or measures are adequate, satisfactory or sufficient. Commonly, the party bringing the lawsuit bears the initial responsibility of pointing out inadequacies or defects in the defendant’s actions. This can impede litigation because environmental petitioners are often at a resource and evidentiary disadvantage relative to defendants. Some courts have shifted this responsibility and placed it upon alleged environmental wrongdoers to disprove or challenge the allegations at hand. By doing so, courts can level the playing field and implicitly reinforce that protection of the environment is a duty, not an option.
Burden of Proof
Burden of Proof describes the stringency and allocation of the obligation imposed on a given party in a legal dispute to prove (or disprove) an assertion, claim or defense that has been made. Differing burdens of proof can demand more or less detail, evidence and plausibility of a party, and vary across both claim types and jurisdictions. Whomever carries the burden of proof in a dispute must meet that standard for a court to consider the party’s assertion valid, cognizable and/or sufficient. In contrast, the assertions of a party that does not carry the ‘burden of proof’ are presumed to be correct and/or valid. Burdens of proof are usually pre-determined by law, but courts and other adjudicatory bodies sometimes have discretion to shift or modify the burden. Burdens of proof can bear decisively on the substance and outcome of any given legal dispute.
Carbon Neutrality
Carbon Neutrality describes the achievement or pursuit by a government or company of an emissions balance – often through offsets, increased energy efficiency and/or other emissions reductions – such that the sum total of greenhouse gasses (GHGs) in the atmosphere remains stable and does not increase. Compare with ‘net zero emissions,’ which also describes the achievement of no net increase in GHG emissions, but which contemplates a more limited set of activities which can justifiably be set to ‘offset’ or reduce emissions.
Due Process
Due Process refers to certain procedural safeguards designed to protect fundamental rights and freedoms. In the judicial context, it describes critical guarantees such as the right of access to justice and to fair and equal treatment under – and through – the law.
Intergenerational Equity
This international and environmental law principle provides that States and other entities must regard the impact of their public policies on the environment on present and future generations equally. In other words, actions that allow present generations to meet their needs and wants but sacrifice the ability of future generations to meet their basic needs and live lives of dignity contravene Intergenerational Equity.
Legislative Intent
Legislative Intent describes the consensus purpose of a legislative body in enacting a certain legal provision or framework. Legislative intent bears on the applicability of laws to any set of facts, the treatment of those facts and the remedies which may follow from a legal violation. If a court finds that a legislature intended a certain end or application, the court is usually bound to effectuate that intent. Legislative intent can be articulated and identified in a number of ways, including via the interpretation of legislative history and/or a law’s plain language.
Public Trust Doctrine
A legal principle that asserts certain natural resources – such as navigable waters, shorelines and other select resources of ecological and cultural importance – are held in trust by the government for the benefit of the public. This means that such resources are considered so crucial for society, that governmental institutions should provide them special protections, for the benefit of the public.
