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2,500 climate lawsuits: Why the Honolulu case is the one to watch
Slate: … Those not following climate cases closely might be surprised to learn of their sheer number. The Sabin Center for Climate Change Law at Columbia Law School and the prestigious law firm Arnold & Porter have joined forces to produce two climate change litigation databases: one for the U.S., and one for the rest of the world. As of this writing, they report 1,678 U.S. cases, and an additional 810 globally—for a grand total of 2,488. Many of these will not ultimately succeed, but their sheer number and their creative diversity portend good things for those concerned about halting and uncertain political progress. Two current cases, one from Montana and one from Hawaii, are particularly noteworthy….
Montana isn’t the only state that guarantees its citizens the right to a clean and healthy environment, so the court has provided an additional tool for advocates and judges in the five other states—to say nothing of the many nations—that enshrine the same rights in their own constitutions: Massachusetts, New York, Illinois, Pennsylvania, and Hawaii….
While the Montana first-of-it-kind decision is groundbreaking, the very recent decision by the Hawaii Supreme Court to allow a trial to proceed in Honolulu’s suit against several Big Oil companies is downright seismic. Although the city makes several claims, at bottom they are all based on the companies’ deceptive marketing practices. Honolulu alleges that the companies knew of the dangers of fossil fuels for decades and failed to warn the city of harms that have come to pass from climate change. And it wasn’t just passive avoidance. The Hawaii Supreme Court sets forth the claims that these producers of oil and gas took active steps to conceal the dangers. In about 1990, they turned from gathering information about climate change to deception: funding fringe scientists who questioned the growing consensus on the anthropogenic contribution to the emerging crisis; engaging in an aggressive public relations campaign to increase use of their products; and funding “think tanks, front groups, and dark money foundations pushing climate change denial.” For example, Exxon alone is alleged to have spent more than $30 million on such efforts.
The city claims to have suffered substantial harm from these wrongful acts, including damage and destruction of beaches; flooding; a warming ocean that has destroyed coral reefs; the loss of native species; and a loss of tax revenue (because of the effect of these changes on tourism). Honolulu will, of course, be forced to incur additional costs in the future for mitigation efforts.
In basing its claims on deceptive marketing and sales practices, Honolulu has hit upon a brilliant strategy—one torn from the strategy guide that has been successfully used to recover damages against Big Tobacco, the pharmaceutical companies that pushed opioid use, and gun sellers. Since all of these products have legal uses, smart lawyers turned their attention to the ways in which these industries promoted them in ways that led to devastating impacts. Tobacco companies denied that nicotine was addictive, and marketed their products to kids. Big Pharma similarly tried to shoot down growing evidence of the highly addictive nature of their products, to devastating impact.
Even gun manufacturers and sellers were called to account for marketing semi-automatic weapons to a group of young men who were particularly susceptible to a certain view of guns as powerful military ordnance. This win was particularly dramatic in light of a federal law that bans most lawsuits against gun sellers. But the statute has a narrow carveout for state laws that apply to the sellers’ conduct, and the Connecticut Supreme Court found that the state’s consumer protection and unfair trade practices law did apply—and that a lawsuit by the families of those massacred at Sandy Hook Elementary School could go forward. The defendants settled for $73 million before that trial, which promised to be disastrous to their public image, began. Who wants to argue in court that it was OK to sell a class of weapons used in the murder of 26 people, including 20 children? ….
Claims alleging deception and failure to warn of a product’s harmful consequences are effective. First, they appeal to the American narrative of individual responsibility. It’s one thing to choose to smoke, use opioids, or purchase and use gas and oil—it’s quite another to be duped into doing so by unscrupulous corporations. Second, they avoid confronting harder questions about the legitimate (or legal, at least, in the case of tobacco) use of the products, which can be difficult to win. This move is particularly crucial in climate change cases, because challenges to emissions themselves are open to the argument that these decisions should be made by regulators, not courts—and that it’s Congress and the EPA, not the individual states, that can assess the situation more broadly. The Hawaii Supreme Court’s decision makes repeated reference to that distinction, quoting favorably from the plaintiff’s complaint: “So long as Defendants start warning of their products’ climate impacts and stop spreading climate disinformation, they can sell as much fossil fuel as they wish without fear of incurring further liability.” ….
Nov 2, 2023: State Supreme Court Justice: ‘Big Oil’ Climate Change Trial is about ‘White Men’, Misogyny, Racism
Nov 2, 2023: Venue Shopping: Why Hawaii became a hotbed of legal activism to target ‘Big Oil’
read …. Hawaii climate lawsuit: Why the Honolulu case is the one to watch
Red Hill Texts Show Navy Officials Worried About Groundwater Months Before Crisis
CB: … Text messages exchanged between some of Hawaii’s top Navy leaders provide a behind-the-scenes look at their discussions about fuel leaks at the Red Hill storage complex that contaminated Pearl Harbor’s drinking water in 2021.
Some of the messages, entered into the federal court record on Thursday, illustrate how the inept response to a May 6, 2021, leak at the facility laid the groundwork for another in November 2021 that sickened families.
One exchange shows Capt. Gordie Meyer, the former commander of Naval Facilities Engineering Systems Command Hawaii, underestimating the severity of the May leak by many thousands of gallons.
A day after the May leak, he said “initial reports are as good as could be hoped for” and it was likely only 1,000 gallons that had been released. That number was reported to the public. Later on, the Navy said the total was closer to 1,600 gallons.
In fact, subsequent military investigations found it was closer to 20,000 gallons. …
The Navy’s failure to account for the fuel leaked in May 2021 was identified by military investigators as a key cause of the catastrophic water contamination to come. The “missing” fuel flowed into a fire suppression drain line designed to remove used firefighting foam and water after a fire. Amid fire suppression system problems, the fuel was not pumped to an aboveground storage container and instead sat in the pipe for months.
The text messages also show Navy officials had early indications that the fuel had reached the groundwater after that May leak.
Meyer received a text from a Navy captain on June 25, 2021, stating that staff were “sounding alarm bells” about groundwater quality. Red Hill is located directly above Oahu’s primary aquifer, which provides drinking water to the southern part of the island.
“Gordie, Sheri is reporting elevated GW detection and is coming over to brief us at 1315,” the captain wrote. Sherri Eng is the environmental director for Navy Region Hawaii. …
Nevertheless, the Navy kept pumping Red Hill well water to people’s homes, and officials did not announce these results to the public. In fact, in October 2021, the Navy’s report on the incident stated no increase in fuel was detected in groundwater monitoring wells near the facility.
The test results were shared with the Hawaii Department of Health. But, as Civil Beat has previously reported, the department considered the data too thin to take action. It was instead used as justification for further testing.
“DOH just called about TPH-o detects-discussed the Navy’s increased sampling and latest non-detect results,” a Navy captain texted to his colleagues on Oct. 1, 2021. “No immediate concerns. Agreed to meet on Tuesday to provide additional details.”
Some residents later said they began feeling sick around this time.
But before much additional testing could happen, the second leak occurred. On Nov. 20, 2021, a worker accidentally hit the pipeline with a cart, triggering a flood of fuel that would spew for 34 hours in a location just 300 feet away from the drinking water well. …
read … Red Hill Texts Show Navy Officials Worried About Groundwater Months Before Crisis
Red Hill fuel removal ahead of schedule, task force says
SA: … Approximately 103,458,180 gallons of fuel, or 99.5%, of the fuel previously stored at Red Hill, has been safely removed, officials said.
Joint Task Force-Red Hill said in a news release that removal of fuel from the “tank mains” had been completed at the Navy’s underground Red Hill Bulk Fuel Storage Facility, draining the storage tanks to the 7-foot level.
JTF-RH reported that it is ahead of schedule in draining the tanks, and has started discussions with the Environmental Protection Agency and the state Department of Health to “possibly accelerate the gravity defueling timeline.” ….
read … Red Hill fuel removal ahead of schedule, task force says
Maui wildfire recovery costs prompt state spending cuts
SA: … Gov. Josh Green recently informed leaders of all state agencies that he is using his emergency power to redirect $173 million in appropriations for about two dozen projects and programs, including long-overdue repairs to a leaky Hawai‘i Convention Center roof, so that the state can cover near-term costs responding to the biggest disaster in recent Hawaii history….
Luis Salaveria, director of the state Department of Budget and Finance, said in an interview that the state already faces around $100 million in accrued bills or known obligations related to the Aug. 8 wildfires and that it’s uncertain how much higher such expenses will grow and when they will be due ….
read … Maui wildfire recovery costs prompt state spending cuts
Spectrum Seeks To Move Lahaina Fire Case To Honolulu Court
CB: … The notice of removal, if allowed to stand, would avoid a Maui jury and could lead to an exodus of cases from the island that has suffered most ….
“It is a big deal, and it’s normal practice” Ken Lawson, a former trial lawyer who teaches at the University of Hawaii’s William S. Richardson School of Law, said in an email. “It’s important because the Defendants would rather be in federal court where there’s less ‘homecooking’ so to speak, than in state courts.”
It’s not just that the jurors would be from Honolulu, and not Maui, Lawson said.
The move also would let defendants “take advantage of trial court judges who are appointed for life and don’t have to worry about losing their seats if state legislators are not pleased with their decisions,” he said….
read … Spectrum Seeks To Move Lahaina Fire Case To Honolulu Court
Inclusion Of Special Education Students Still Eludes Hawaii Schools
CB: … The federal Department of Education calculates inclusion rates based on the percentage of special education students who attend general education classes for at least 80% of the school day. Schools’ rates of special education student inclusion still vary widely across Hawaii, and while there are ongoing efforts to address that, teachers question if inclusion can be effectively implemented in their classrooms with the resources available.
In 2017, Hawaii had one of the lowest inclusion rates in the nation. “Our data didn’t look very good,” said Annie Kalama, assistant superintendent of the office of student support services.
That year, the state DOE began working with Stetson & Associates, an educational consulting firm, to offer professional development for 50 schools, training teachers and complex area leaders on inclusive practices.
The state’s inclusion rates have since risen from 41% in the 2017-18 school year to 53% last year. By the 2024-25 school year, DOE hopes to hit an inclusion rate of 61%, Kalama said. But even with this improvement, Hawaii would still fall behind the 2021 national inclusion rate of 67%, according to the National Center for Education Statistics….
read … Inclusion Of Special Education Students Still Eludes Hawaii Schools
Hawaii Island vendors scramble over Dec. 1 enforcement blitz
KITV: … Street vendors on Hawaii Island have been warned to stay off of Highways by the State Department of Transportation (HDOT). Some could face fines starting Dec. 1 for highway vending….
read … Hawaii Island vendors scramble over Dec. 1 enforcement blitz
‘It’s a huge punch in the gut’: Surf school lottery ends with three of four permits awarded to one owner
HTH: … The first four numbers drawn were to receive the coveted spots, with the rest being put on a wait list in case the winners were not able to complete the permit process with the county and state by the Dec. 4 deadline.
Underwood said this was the first time a lottery system for awarding permits has been used at DOBOR.
After the drawing, it was learned that three of the four winning entries, Hinaea Iliahi LLC, Kauakea LLC and Kona Town Adventures LLC were all owned by the same individual, Wesley Moore.
In all, Moore submitted eight LLC companies to compete in the lottery. The other winner was Kahalu‘u Bay Surf and Sea.
That left the remaining 7 surf school operators in disbelief, especially since there is no appeal process in place for the lottery.
“I’m still trying to process how this is legally followed, for an individual to have multiple entries unbeknownst to the rest of the companies,” said Tifani Stegehuis from Hawaii Lifeguard Surf Instructors. “The parameters of qualifications were vague and open to interpretation. The verbiage led to loopholes.”
“My business has been there for 23 years and three generations. With all due respect, liability falls on you guys for permit holders that will be out there who are hiring instructors who are not lifeguard certified. The state is saying to the public that they selected these people to be safe. It did not seem to be a well thought out process,” she told Underwood. “It’s a huge punch in the gut for being born and raised here.”
To qualify for the lottery, a school had to have a GET license, certificate of compliance from the Department of Taxation, be in good standing with DCCA and have liability insurance and documentation proving at least five years experience providing surfing instruction.
Underwood said they went to the Legislature to select the four permit holders based on seniority. HB 1090 made it through the legislature but was vetoed by Gov. Green.
(TRANSLATION: DOBOR purposefully screwed up the bidding in order to pressure Green and the legislature to reconsider legislation similar to HB1090. DOBOR’s political act provides the basis for a bid challenge by losing bidders.)
Rep. Kirstin Kahaloa, whose district includes Kahalu‘u Beach, is dismayed by the process used by DLNR to select the permit holders….
read … ‘It’s a huge punch in the gut’: Surf school lottery ends with three of four permits awarded to one owner - Hawaii Tribune-Herald
Liquor License Applications Backlogged by Chaos at Honolulu Liquor Commission
CB: … One of the biggest effects of the recent problems and high turnover is that the system is currently backlogged. Almost 230 liquor license applications are pending, with about a nine and a half month average wait, according to the commission website’s Data Dashboard tool.
The new commissioners will also help with this backlog, said Petilos. Previously, the five-member volunteer board had two vacancies, meaning that it could not hold a weekly meeting if any one commissioner was absent.
Petilos also must tackle a staff shortage and deal with a federal civil rights lawsuit against the commission, which accuses investigators of harassing the popular LGBTQ+ bar Scarlet Honolulu as well as the newsletter Gay Island Guide.
In August, one newly hired investigator filed a federal complaint, alleging that the commission is a hostile and discriminatory workplace that skimps on hiring and training….
read … The Honolulu Liquor Commission's New Administrator Plans Changes
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