Hawaii’s top court issued a ruling this week recognizing a human right to a stable climate, a decision that could reverberate in other rights-based climate cases in the US and beyond.
The basis for the decision, that citizens have an affirmative right “to a life-sustaining climate system,” is the first of its kind related to climate litigation in the US, and it could be of use in other decisions, according to Maria Antonia Tigre, a Sabin Center global climate litigation fellow.
“We do see a lot of that cross-fertilization in climate litigation nowadays, and just having that interpretation of the right to a safe climate within the rights for healthy environment and connected to other human rights, it’s usually significant,” Tigre said in an interview.
The Hawaii Supreme Court rejected a challenge from biomass power plant developer Hawaiian Electric Company, which attempted to enter a power purchasing agreement with Hu Honua Bioenergy. That agreement was rejected by the island’s Public Utilities Commission, or PUC.
The companies sued the state regulators over the rejection, but the Hawaii Supreme Court panel unanimously rejected the bid, ruling that state regulators fulfilled a “public interest-minded mission” in rejecting the agreement based on the power project’s environmental repercussions.
“The reality is that yesterday’s good enough has become today’s unacceptable,” Supreme Court Justice Todd Eddins wrote in the opinion. “The PUC was under no obligation to evaluate an energy project conceived of in 2012 the same way in 2022. Indeed, doing so would have betrayed its constitutional duty.”
Paying Attention
The PUC found that the project would be a significant net-emitter of greenhouses gases for its first 25 years, two years beyond the state of Hawaii’s 2045 zero emissions target.
This opinion detail shows courts are paying attention to net-zero commitments “even if companies are not,” according to Lewis & Clark law professor Lisa Benjamin.
“The case illustrates that corporate strategies to emit now, and offset later, are not always going to be successful if litigated,” Benjamin said in an email.
The intersection of climate and human rights continues to gain ground in international and US courts.
Legal benches in South America, Africa, the Middle East, and Europe have considered lawsuits that probe the question of whether people have affirmative human rights to healthy environments, ecosystems, and climate. Decided and ongoing legal actions in Columbia, the Netherlands, the Philippines, and at The Hague demonstrate how far these lawsuits can progress.
Courts in the U.S. deal with the most climate lawsuits of any other nation, but the cases face higher bars in a more stringent legal framework under a centuries-old Constitution that doesn’t include verbatim environmental rights language.
‘Exciting’ Development
The most notable constitutional climate rights case, Juliana v. US, is still pending in federal court, awaiting a decision on whether 21 youth plaintiffs can reignite their case toward trial under amended claims.
The concurring opinion in the Hawaii ruling cites Juliana’s rejection by the US Court of Appeals for the Ninth Circuit, noting that the remedy now falls to other judges.
“The stark failure of the federal judiciary to grant redress to present and future generations alleging knowing destruction of a life-sustaining climate system relegates implementation of the climate rule of law to state judiciaries,” Hawaii Supreme Court Justice Michael D. Wilson wrote.
Grounding the judicial interpretation in the right to a clean and healthy environment—which the court expressly states includes the right to a life-sustaining climate system—is innovative in the US, as the court links the right to a clean and healthy environment to the obligation of a public agency, like a PUC, to consider greenhouse gas emissions.
The unanimous rights-based climate victory in Hawaii could be a boon for other pending cases, including a youth constitutional case on its way to trial in June at Montana’s Supreme Court. But the U.S. legal system is a more complicated place to bring climate rights-based cases, so the the effect of the Hawaii decision remains to be seen.
“Not many cases in the US ground climate obligations in human rights language,” Benjamin said. “It’s unclear whether other states, with similar language in their state constitutions, will adopt this kind of interpretation, but it is certainly an exciting development.”
The case is In re Hawai’i Elec. Light Co., Haw., No. SCOT-22-0000418, 3/13/23.
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