Hawaii Courts Catch 'Aloha Fever' and Judicial Restraint Gets the Surfboard

In Hawaii, the law is what activist judges say it is.

By Dan Fisher

Judicial precedent and consistency are for suckers.

At least, that seems to be the guiding philosophy at the Hawaiʻi Supreme Court, which has substituted its own “Aloha Spirit” for traditional principles of jurisprudence and restraint. 

Whether thumbing its nose at the U.S. Supreme Court on gun rights, or asserting a vague “right to a life-sustaining climate system” to approve lawsuits against energy producers, Hawaiʻi’s high court is competing with California for the title of nation’s most leftward bench. 

Where this will leave Hawaiʻi’s citizens and industry is anybody’s guess. Oil companies are asking the U.S. Supreme Court to overturn an October 2023 opinion from Hawaiʻi’s top court allowing Honolulu to proceed with a lawsuit accusing the industry of fraudulently denying the connection between fossil fuels and global warming. Honolulu’s lawsuit is one of many pursued by Sher Edling, a private San Francisco law firm that represents government plaintiffs in pollution lawsuits on a contingency-fee basis.

Leaving aside the absurdity of Honolulu’s allegation – that consumers only bought gas for their cars because they were tricked – there is in the state court decision a kind of conspiracy to obscure the real point of the litigation: driving energy companies out of business.

Activist judges making climate policy

“This suit does not seek to regulate emissions and does not seek damages for interstate emissions,” intoned Chief Justice Mark E. Recktenwald, expressing the legal argument lawyers at Sher Edling thought up after courts rejected other, more direct attacks on the fossil fuel industry.

Decisions like this make clear that how courts are built matters. Consider that Recktenwald is the only justice nominated by a Republican governor and you’ll get a sense of the depth of the problem in the Aloha State. The other four justices were nominated by Democratic governors from lists drawn up by a Judicial Selection Committee that includes two representatives of the litigious state bar and none from the general public.

Some of the court’s most far-reaching decisions have been penned by Justice Todd Eddins, a former public defender and asbestos plaintiff lawyer who was nominated to the court in 2020 by Democratic Gov. David Ige.

It was Eddins who cited the “Aloha Spirit” in rejecting the U.S. Supreme Court’s ruling that the Second Amendment guarantees an individual right to bear arms. Acknowledging the Hawaiʻi version of the amendment is virtually identical to the one in the U.S. Bill of Rights, Eddins wrote: “We read those words differently than the current United States Supreme Court. We hold that in Hawaiʻi there is no state constitutional right to carry a firearm in public.”

The justice expanded upon his views in a May interview with Slate magazine. He said it was “an incredibly joyous exercise” to “take down the dishonest U.S. Supreme Court’s analysis of the Second Amendment,” which he said “increased homicide throughout the nation.”

“I think I have a responsibility to speak out against the horrors and treachery that goes on at the highest court in the nation,” he said in that interview.

Eddins also was the author of a series of environmental opinions, each one used as a stepping stone for the next, that established a state constitutional basis for imposing climate liability on energy companies. In 2022 he wrote that Article XI, Section 9 of the Hawaii Constitution, which provides a right to a “clean and healthful environment,” empowered public utility regulators to pursue a goal of net-zero carbon emissions. Then in 2023, he upheld the Public Utility Commission’s denial of a permit to a biomass power plant even though developers said it would produce net negative carbon emissions after planting eucalyptus forests to fuel it.

Environmentalists had standing to sue to block the plant under their right to a healthy environment, he wrote, and the PUC had no obligation to evaluate the plant under the regulatory standards in place when the developer first applied for a permit in 2012. 

“The reality is that yesterday’s good enough has become today’s unacceptable,” Eddins wrote. “The right to a life-sustaining climate system is not just affirmative; it is constantly evolving.”

Hawaiʻi cited Eddins’ 2022 opinion this June when it settled a climate lawsuit brought by a law firm representing  youth plaintiffs, including this quote: “Hawaiʻi’s space on Earth makes us vulnerable to the ecological damage caused by an unhealthy climate system.” That settlement, glowingly approved by Democratic Gov. Josh Green, requires the state to decarbonize the state transportation system within 20 years, build fewer roads and more bike paths, and spend at least $40 million on electric vehicle charging stations by 2030. 

The governor’s news release announcing the settlement made it clear that judges, not legislators, were supposed to make climate policy. It even quoted plaintiff attorney Andrea Rodgers, saying: “Our courts are essential guardians of young peoples’ constitutional rights and empowered to protect the planet.” 

La Jolla Tobacconization Strategy

Hawai’i may be the most stark example of progressives using courts to make climate policy, but it’s far from the only one. In multiple states, billionaire-backed foundations have supported state and local governments in filing lawsuits against energy companies in an effort to force existential settlements. They started out suing over CO2 emissions themselves, until federal courts threw out the cases as illegitimate attempts to legislate energy policy in the courts. Sher Edling and other law firms then retooled the strategy, claiming energy companies violated state consumer-protection laws by writing editorials and sponsoring scientific research they said misled consumers about the truth behind global warming.

Firebreak editor David Zaruk has dubbed it the “La Jolla Tobacconization Strategy” after a 2012 conference organized by Harvard professor and activist Naomi Oreskes that compared the oil industry to tobacco companies. That conference, at the Scripps Institute in La Jolla, Calif., urged participants to come up with a “compelling public narrative about climate change” that pinned the blame for climate change on “specific carbon producers.” Litigation was key to the strategy, because courts could order oil companies to disclose internal documents Oreske and others believed would reveal a disinformation campaign similar to how tobacco companies cast doubt on the link between cancer and smoking. (A strategy that overlooked the fact that every pack of cigarettes has had a prominent health warning since 1965.)

Foundations including the Rockefeller Foundation, the William and Flora Hewlett Foundation and the New Venture Fund have given millions of dollars to fund climate litigation. Those gifts include more than $5 million in grants to Sher Edling, which says the charitable dollars “support only the firm’s general operations.” 

Make no mistake, though: Sher Edling is in this to make a profit. The firm has  earned millions of dollars in fees representing government plaintiffs in lawsuits over the gasoline additive MTBE and is in line for a share of $100 million in fees from a $10 billion PFAS settlement in federal court this year.

Justice Recktenwald rejected defense requests that he recuse himself from the Hawaii climate case after he disclosed his participation in a 2023 seminar organized by the Environmental Law Institute, a nonprofit that says it educates judges about climate science. The group’s members include energy industry officials as well as environmentalists like Ann Carlson, a one-time Biden administration nominee for the National Highway Traffic Safety Administration who provided “pro bono consulting” for Sher Edling for years. 

In that seminar, Justice Recktenwald told other judges about the strategy behind climate litigation, including the argument: “Corporations engaged in deceptive sales and marketing campaigns that have resulted in damaging climate impacts.” In a filing in his own court, the justice included his slides and invited objections, although he ultimately declined to recuse himself.

Ignoring federal courts

The Honolulu case may yet prove to be a bridge too far for the Hawaiʻi Supreme Court. In June, the U.S. Supreme Court asked the Biden administration to weigh in on the legal argument about whether federal law trumps state law in such cases.

In his October 2023 opinion, Justice Recktenwald rejected the idea, affirmed by two federal courts, that the federal Clean Air Act “occupied the field” of pollution regulation and precluded state-court lawsuits over CO2 emissions. To support his argument, the justice cited a landmark case by the City of Baltimore, which the U.S. Supreme allowed to return to state court, only to have it dismissed there in July.

The crux of the Hawaiʻi Supreme Court’s argument is that the Clean Air Act displaced only the common law federal courts used to decide air pollution cases, but not state suits based upon common-law principles like public nuisance and consumer fraud. 

“The source of plaintiffs’ injury is not pollution, nor emissions,” Justice Recktenwald wrote. “Instead, the source of plaintiffs’ alleged injury is defendants’ alleged failure to warn and deceptive promotion.”

That argument is too clever by half, Chevron and other defendants argue in a brief seeking U.S. Supreme Court review. The Second Circuit Court of Appeals in New York considered exactly the same question and ruled federal law trumps state deceptive-marketing claims because they are merely disguised air pollution claims. “Artful pleading cannot transform the City's complaint into anything other than a suit over global greenhouse emissions,” the Second Circuit ruled.

Defendants can draw some support from the July decision dismissing the Baltimore climate case, where Judge Videtta Brown rejected consumer-fraud claims identical to Honolulu’s. Were Baltimore to be allowed to proceed, the judge wrote, “the duty to warn would be extended to every single human being on the planet whose use of fossil fuel products may have contributed to global climate change, ultimately affecting Baltimore and its residents.”

“This exact level of duty - to the world - is what Maryland law warns against,” the judge concluded.

Down with originalism?

Will the U.S. Supreme Court push back on the Aloha Spirit? And will the justices on the Hawai’i Supreme Court listen? Justice Eddins achieved local fame after he won a landmark defense verdict before the high court in 2005, in which he represented a woman who was arrested over the death of her son days after his birth. The infant boy was found with methamphetamine in his system, but Eddins successfully argued the manslaughter statute didn’t cover a pregnant mother whose actions caused the death of her baby.

“From the onset of this prosecution, we firmly believed that established legal principles and the medical and social public reasons supported our position," Eddins told the Honolulu Advertiser in 2005.

Now sitting on that same Supreme Court, Justice Eddins told Slate magazine that he was done with established legal principles, at least when it comes to the U.S. Supreme Court’s originalist rulings.

“It makes no sense for contemporary society to pledge allegiance to the founding era’s culture, and I had the opportunity to write that,” the justice said. “I’m lucky to have such a supportive court; they said 'Go for it,’ because that’s what we collectively believe.”

Daniel Fisher is a former Forbes magazine and Bloomberg Business News writer who attended Yale Law School as a Knight Fellow.