Hawaii reaches first settlement in youth climate case

Source: By Lesley Clark, E&E News • Posted: Sunday, June 23, 2024

The deal averts a massive trial — which would have been the second of its kind in the U.S. — that was set to begin next week.

A man walks through wildfire wreckage in Lahaina, Hawaii.

A man walks through wildfire wreckage on Maui in 2023. Young activists behind a landmark Hawaii lawsuit said they have been harmed by wildfires and other disasters fueled by climate change. Rick Bowmer/AP

Hawaii and young climate activists have reached a first-of-its kind legal settlement, giving youth a role in curbing planet-warming emissions while avoiding a major trial that was set to begin next week.

The agreement announced Thursday requires the Hawaii Department of Transportation to develop a plan to fully decarbonize ground, sea and interisland air travel by 2045. It also creates a youth council to provide feedback to the state agency.

“You have a constitutional right to fight for life-sustaining climate policy, and you have mobilized our people,” said Hawaii Gov. Josh Green, who announced the settlement at the state Capitol. Green, a Democrat, was joined by the state’s transportation director, several of the young climate activists and their attorneys.

“You’re the first in the country to succeed, and I hope others will follow your lead,” Green told the youth.

Under the settlement, Hawaii agreed to make immediate investments in clean transportation infrastructure, including completing a pedestrian, bicycle and transit network in five years and dedicating a minimum of $40 million to expand the public electric vehicle charging network by 2030.

The settlement marks a major victory for the 13 young plaintiffs in Navahine v. Hawai‘i Department of Transportation, as well as Our Children’s Trust, the Oregon-based law firm representing the challengers. The youth had been scheduled to go to trial — the second proceeding of its kind in the United States — in Honolulu on Monday.

In the first U.S. youth climate trial, which took place last year in Montana, Our Children’s Trust secured a court ruling that said the state had violated young people’s rights by preventing analysis of climate effects in environmental reviews of energy projects. The firm’s federal litigation efforts have stumbled in court.

“It is truly one for the ages,” Andrea Rodgers, co-counsel for the Hawaii youth and deputy director of U.S. strategy for Our Children’s Trust, said of Thursday’s settlement in Hawaii.

“What we see today is democracy in action … led by our youth who activated their courts when their rights were in danger,” Rodgers continued.

The Hawaii case was the first youth lawsuit to target climate pollution from a transportation agency. Nationwide, transportation is the top source of climate pollution, and the sector accounts for nearly 60 percent of Hawaii’s carbon output.

Hawaii state Environmental Court Judge John Tonaki formally accepted the settlement Thursday, and Rodgers said the court has agreed to continue overseeing the agreement until 2045 — or until the zero-emissions target is achieved.

Many of the plaintiffs are Native Hawaiian youth who say they’re already experiencing harm from climate change. They have protested and written letters to state government leaders.

On Thursday, they expressed delight that the government had heard their concerns.

“We got what we came for, and we got it faster than we expected,” said Navahine F., whose last name has not been publicized because she was under 18 when the case was filed. “Mai kuhihewa [make no mistake], young people have the power to make a difference for their futures.”

‘It is not going to be easy’

The Hawaii youth had claimed that state transportation officials were violating their rights by not cooperating with other agencies to slash greenhouse gas emissions.

They accused the agency of prioritizing highway construction over mass transit and vehicle electrification.

Green, who has tried to convince the Hawaii Legislature to support a $25 fee for out-of-state visitors that could be used to address climate change, warned Thursday that some of the work required by the settlement may not be popular.

“It is not going to be inexpensive. It is not going to be easy,” the governor said. “We owe it to ourselves to really fund these programs that have been well thought out and that now are a mandate for us, from a statutory and legal standpoint.”

Legal observers had noted that Hawaii’s courts were likely to take a favorable view of the youth lawsuit. As in Montana, the Hawaii Constitution protects environmental rights, and the state Supreme Court declared in a 2023 ruling that residents of the state are entitled to “a life-sustaining climate system.”

No such protections exist in the U.S. Constitution.

Retired Hawaii Supreme Court Justice Michael Wilson said in a recent interview with POLITICO’s E&E News that Green has sought to address climate change and identified it as a contributing factor in the 2023 Maui wildfires, which killed at least 115 people and forced thousands to flee their homes.

Several of the youth in the Hawaii case — which was filed in June 2022 — said in the lawsuit that they had been affected by wildfires.

“We recognized the right. Now, these young people are seeking enforcement of that right,” Wilson said. “They’re testing the boundaries.”

News of the settlement elated Hawaii state Sen. Chris Lee, a Democrat who last year successfully passed legislation to prod the state and the transportation sector to move faster to curb carbon emissions.

“It’s one of the most significant moments in recent history where everybody — from the administration, to the Legislature, DOT and our next generation are all aligned, working together to achieve the same goals,” Lee said of the settlement. “Over the last few years, we’ve made significant progress to transform transportation, and this really puts a ribbon on it.”

Hawaii climate action

Hawaii in 2021 became the first state to declare a climate emergency, and it has one of the most ambitious climate targets in the country, aiming to fully powered by renewables by 2045.

Despite that ambitious target, the Hawaii State Energy Office has said that “progress towards those goals have not met expectations.”

Unlike in Montana, where state officials are trying to overturn Our Children’s Trust’s court win, Hawaii lawmakers have spoken favorably of the Navahine lawsuit. Several pressed state Attorney General Anne Lopez, a Democrat, to settle the case, bristling at a request to spend $2.5 million on outside counsel to fight the young plaintiffs.

“We’re going to have to do [climate mitigation] anyhow because that’s what Mother Nature is throwing at us,” Sen. Karl Rhoads, a Democrat, asked Lopez at a state Senate hearing in January. “So why are we stalling?”

State Sen. Mike Gabbard, a Democrat who proposed the climate emergency resolution in 2021, said in an interview this week that he applauds the young people — keiki, in Hawaiian — for holding the government accountable.

A former high school teacher, Gabbard said he was “stoked” to see the youth take on the state: “They’re leading the way instead of sitting back and complaining.”

State Rep. Nicole Lowen, a Democrat who chairs the House Committee on Energy and Environmental Protection, said in an interview this week that litigation can prove to be a motivator.

“There are a lot of well-meaning, hard-working people at the DOT, but institutional inertia is a real thing,” Lowen said. “For better or worse, sometimes litigation like this is needed to be the catalyst for change.”