The Hawai'i Environmental Court: a New Judicial Tool to Enforce Hawaii's Environmental Laws
| Jurisdiction | United States,Federal,Hawaii |
| Citation | Vol. 19 No. 08 |
| Publication year | 2015 |
by Hon. Michael D. Wilson
What Do We Care About Most
At 10:49 a.m. EDTJuly 20, 1996 the Space Shuttle Columbia lifted off launch pad 39-B at the Kennedy Space Center for what would become the longest and most complex shuttle mission up to that time. Aboard Columbia was astronaut Charles E. Brady, Jr., a brilliant physician who was also a former Blue Angels fighter pilot.
As Chuck Brady looked at Hawai'i from space he asked himself the question, "What do I care about the most?" From his unique geographical position, he was a witness for humanity of the condition of Earth. He developed anxiety watching the deterioration of the Earth day after day, but found solace when, during its rotation, he saw Hawai'i. It was the most beautiful, pristine, healthy-appearing part of the planet — green islands shining in the middle of the Pacific Ocean. From space, he made a pact with himself to travel to Hawai'i to encourage its protection.
As the director of the Department of Land and Natural Resources for the State of Hawai'i ("DLNR"), it was my good fortune to be the one Chuck Brady came to visit in fulfillment of his personal pledge in 1996. He told me the clearest of his revelations in space was that everything he cared about — his family, his community, his nation — was dependent on a fragile, seemingly small planet that was under siege.
To understand the creation of the environmental court for the State of Hawai'i1 is to ask the question the islands inspired Chuck Brady to ask: "What do we care about the most?" The environmental court's purpose is to protect the land, air, and water that give Hawaii life. The state motto recognizes that the lives of Hawaii's people depend on how the environment is treated: "The life of the land is perpetuated in righteousness."2
The Hawai'i Constitution contains provisions unique among state constitutions mandating that natural resources, including "natural beauty," be conserved and protected for "future generations" and that such resources be developed and utilized "in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State."3 No other state has elevated protection of "natural beauty" to the level of a constitutional mandate; nor has any state mandated that natural resources be managed in furtherance of self-sufficiency.4 Hawaii's Constitution also is one of only seven state constitutions that guarantee to every citizen "the right to a clean and healthful environment[.]"5
The idea of a court designed to protect our natural resource heritage arose on Maui through the patient, enduring leadership of Jan Dapitan and her volunteer colleagues who administer Keep the Hawaiian Islands Beautiful, a nonprofit organization dedicated to beautification of America, and more specifically, Maui.
With the support of Senator Gilbert Keith-Agaran, Senator Mike Gabbard, Representative Chris Lee, and Governor Neil Abercrombie, the Court was established pursuant to Act 218 with a start date of July 1, 2015. The stated purpose of the act "is to promote and protect Hawaii's natural environment through consistent and uniform application of environmental laws by establishing environmental courts."6 In support of this purpose the legislature found "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."7 The legislature concluded the protection of the environment required greater participation by the judiciary to ensure that the State upholds its public trust duty to protect the environment for future generations.
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.
2014 Haw. Sess. Laws Act 218 § 1 at 737-38. Thus, with the establishment of the environmental court, the legislature sought to better ensure just treatment of Hawaii's environmental treasure.
What is happening to what we care about most?
A second question useful to understanding the environmental court of Hawai'i is: "What is happening to what we care about most." What is happening to the land, air, and water upon which our immediate and global communities depend? At a global level, climate change is often declared the most important issue facing humanity. Three hundred thousand people gathered at the United Nations in New York to make this point on September 22, 2014.
As a member of the three hundred thousand, United Nations Secretary-General Ban Ki-moon described the importance of climate change: "This is the planet where our subsequent generations will live . . . there is no 'Plan B,' because we do not have 'Planet B.'"8
One of the world's most acclaimed environmental jurists, Brazil Supreme Court Justice Antonio Benjamin, has described climate change as the single most important legal issue facing judges globally. He made that observation in his remarks prepared for Hawaii's environmental court judges at the judicial training in Honolulu on May 22, 2015.
Justice Benjamin also observed that judges are called upon to address climate-change ramifications to all areas of law, including insurance and contracts, but they do not receive clear guidance from the legislative or scientific community.9Noted environmental law professor Mary Wood10 teaches that climate change is humanity's most important legal issue because degradation of land, air, and water is leading to destabilization of the ecosystems upon which successful economies and concomitant human rights depend.
At a recent international environmental law conference for judges convened by the Supreme Court of India on March 14, 2015, the Hawai'i environmental court was discussed in the context of its importance to environmental rule of law internationally. Among judges and justices from around the world, including Justice Antonio Benjamin, there was wide recognition that Hawai'i is the place most identified as the ideal environment. By all measures, the term environment is usually identified globally as a positive concept associated with the natural world. Among environmental ecosystems, the more favorably regarded are warm coastal areas with beaches. Of all the world's beach locations, Hawai'i is the most recognized for its natural beauty. Thus, under this analysis, Hawai'i is the location most widely perceived as Earth's ideal environment.
As the most enduring global image of an ideal environment, Hawai'i provides a crucial juxtaposition to the alarming environmental issues normally perceived by the world community. These issues commonly have grave implications: the poisoning of the sacred Ganges River in India, decreased life expectancy for people in the world's most contaminated cities, destruction of the world's most important forest in the Amazon, radiation poisoning from the Tohoku tsunami, devastation of the marine ecosystem in the Gulf of Mexico from petroleum contamination, the recently declared states of emergency in California due to drought, and the oil spill that fouled the coastline of Santa Barbara. Faced with epic demonstrations of environmental damage to the...
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