Hawaii’s Novel Environmental Court

The residents of the state of Hawaii have long prided themselves on their commitment to maintaining the beauty and the pristine condition of their island home. The importance of protecting the environment is in fact reflected in their state constitution. Now, for the first time ever, Hawaii intends to establish specific courts to adjudicate all manner of environmental litigation. The Hawaii constitution, Article XI, Section 1, provides:

For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaii’s natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of self-sufficiency of the State.

All public natural resources are held in trust by the State for the benefit of the people.

To further implement this goal, the legislature in 2014 passed Act 218, which provides:

The legislature finds that environmental disputes are currently dealt with in a variety of courts. This organizational structure inadvertently promotes inconsistent application of the wide variety of environmental laws. The legislature also finds that the continued maintenance and improvement of Hawaii’s environment requires constant vigilance and continued stewardship to ensure its lasting beauty, cleanliness, uniqueness, and the stability of its natural systems, all of which enhance the mental and physical well-being of Hawaii’s people.

The legislature further finds that Hawaii’s natural resources are compromised every day resulting in numerous violations of the law. An environmental court will better ensure that the State upholds its constitutional obligation to protect the public trust for the benefit of all beneficiaries.

The court, which was originally to be comprised of just one judge, has not yet been established. However, the statutory scheme envisions this court having jurisdiction over such diverse matters as to include possible violations of rules for use of hunting dogs and Hawaii’s Environmental Response Law; handling of stray animals in state parks and Hawaii’s Safe Drinking Water Act; crew requirements for canoe operation and Hawaii’s Hazardous Waste Act; and civil actions as well as criminal actions. Anticipating a substantial case load for this court, and recognizing that environmental actions can be and are filed in any number of different courts around that state, the Chief Justice has recommended that more than one judge be appointed as a member of this court. There is also discussion of ensuring the assigned judges have access to appropriate training to enhance their ability to handle these cases.

The likely effective date for this program is not clear, though the legislature previously expressed a desire to have it implemented during this calendar year.

This concept of an Environmental Court with experienced jurists familiar with the comprehensive array of environmental statutes and regulations is intriguing. One would hope that a judge trained in regards to environmental regulations and experienced in litigation resulting from their implementation would be the right jurist to hear future disputes. However, as noted above the mandate established in the constitution and statutes is for the courts to “ensure that the State upholds its constitutional obligation to protect the public trust for the benefit of all beneficiaries,” which suggests a possible “tilt” against defendants in environmental cases. Other states may monitor this new court to determine if it should be emulated elsewhere.