Hawaii's "Environmental Court" - A Bad Idea Whose Time (Apparently) Is Nigh

by Robert Thomas, InverseCondemnation, May 23, 2014

A few months ago, we commented on the proposed "environmental court," a bill working its way through the Hawaii legislature. We called it a bad idea, and hoped the Lawgivers would see the light and let this idea fade away.

It looks like we were unjustifiably optimistic, and both houses have now passed the bill (view its current form here (SD632)). See also "Bill would create environmental court" from West Hawaii Today, which correctly notes that the only thing standing between the bill and the rest of us is Governor Abercrombie's veto pen. 

Rather than redo our earlier comments, we simply repost them below since our thoughts remain unchanged. All we have to add at this point is the above video, a longer piece, but worth your time if interested. Its title is "Price of Paradise," and it explores why Hawaii housing prices -- and Maui's in particular -- are among the highest in the nation. A large part of the reason is the byzantine regulatory processes we presently have in place. Processes that the legislature just made a whole lot harder. We hope the Governor will do the right thing, but aren't holding our breath.

To paraphrase Bette Davis, fasten your seatbelts folks, this is going to be a bumpy ride. 

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Looks like they're at it again, a solution in search of a problem: a bill has been proposed in the Hawaii Legislature to create an "Environmental Court," whose mission would be to handle "environmental disputes" arising under a wide range of state statutes:

...administrative proceedings and proceedings for declaratory judgment on the validity of agency rules authorized under chapter 91, arising under chapters 6D, 6E, 6K, 54, 58, 128D, 128E, 201N, 205, 205A, 220, 269, 339, 339D, 340A, 340B, 340E, 340F, 342B, 342C, 342D, 342E, 342F, 342G, 342H, 342I, 342J, 342L, 342P, 343, 508C, and 664, and Titles 11 and 12.

(And the regulations promulgated by state agencies, and ordinances and regulations promulgated by the counties, no doubt.) The bill (SB 632) would task this new court with "maintenance and improvement" of the environment and with exercising "constant vigilence" to "promote and protect Hawaii's natural environment through consistent and uniform application of environmental laws." Because of the pervasive regulatory system already in place (plus surely more to come in the future), it wouldn't be hard to tie in a claim under one of these provisions to invoke the jurisdiction of this special court. All you'd need do is find a plaintiff who meets the low standing threshold, and off you go. 

Let's put aside the question of whether the remarkable win rate that certain plaintiffs enjoy in our state courts already (as reported by U. Hawaii Law Professor David Callies, as we noted in our first post on this topic a couple of years ago) means we really don't need this court.

Another reason exists for turning away this latest scheme: despite the legislature's conclusion that a "variety of courts" currently deal with environmental disputes, and that this "inadvertently promotes inconsistent application of the wide variety of environmental law," our experience is just the opposite. The circuit courts currently handle administrative appeals and original jurisdiction actions, and we're not aware of what the legislature possibly means when it asserts that a "variety" of courts now do. And these courts have not been inconsistent in application of environmental laws (and even if they are, the appeals courts set them right). The Judiciary submitted written testimony against the bill, echoing those points:

Senate Bill No. 632 would establish within each circuit an environmental court with separate rule, based upon the misunderstanding that "environmental disputes are currently dealt with in a variety of courts," and "this organizational structure inadvertently promotes inconsistent application of the wide variety of environmental laws." Although the Judiciary does not maintain statistical information regarding the application of environmental law, all agency appeals to the circuit court, including agency appeals covering environmental issues, are now assigned regularly to one designated judge in the first judicial circuit and are rotated among the civil judges in the second, third, and fifth judicial circuits, and are handled in due course.

...

Our research has not indicated that the present court system fails to provide uniform application of environmental laws. Furthermore, if any party in an environmental case is dissatisfied with the outcome, that party has a remedy by way of appeal the Intermediate Court of Appeals and then to the Supreme Court. This appellate process insures consistent application of environmental laws for the trial courts are bound to follow the appellate court decisions.

In other words, the reality is that we already have judges knowledgeable and experienced in applying environmental law. They're called circuit judges, ICA judges, and Supreme Court justices.

Judges, as they often remind us, are "generalists," and they -- with the help of the lawyers representing the parties -- are or become familiar in whatever law is applicable in a case, whether it is environmental law, the commercial code, criminal law, personal injury law, or whatever the issue is before the court. And there's nothing to show that these judges are unable to deal with environmental issues already. Indeed, if Professor Callies' statistics are accepted, they already do a bang-up job from an environmentalist's perspective, no?

This proposal seems to be a bait-and-switch, a foot in the door to create an even more favorable forum for certain preferred plaintiffs: the bill has been portrayed in the media by its supporters as something like a nuisance-abatement enforcement court, even though that's not what the bill actually says:

The Office of Hawaiian Affairs and the state Department of Land and Natural Resources were among those to testify in support of the bill. They said that having judges and courts with expertise in environmental law would help avoid costly legal appeals in complex cases.

In the committee hearing Wednesday, Bin C. Li, the administrative proceedings coordinator at the Department of Land and Natural Resources, asked lawmakers to include his department's enforcement statutes under the proposed environmental court's jurisdiction.

The reason, he said after the hearing, came down to getting cases handled more efficiently.

"We have bigger cases and we have smaller cases," Li said, giving such examples as stream pollution, boats running aground on coral reefs and fishermen violating their licenses. "We've been seeing that DLNR cases have been taking a backseat in the judiciary system. We think by establishing this court, the judiciary can process our cases with the priority and the urgency we think they should have."

But speeding up resolution is not the bill's stated intent, nor what it actually proposes. If it were just giving environmental cases docket priority, that could easily be done without creating an entire subcourt with specialized jurisdiction. See, e.g., the open records law (giving "precedence on the docket" to such cases), and the eminent domain code (giving condemnation actions "preference of all other civil actions"). No, what this bill represents is a way for certain interests to establish a court that they can eventually "capture," and just the first step in creating a subsystem that recognizes environmental laws as primary, in which the "environmental" court would handle land use and other related issues, and in which property owners and their rights are all but forgotten. For example, the State Office of Planning submitted testimony that already advocates for mission creep:

The focus of the court should not be constrained to "environment." Our key state land use and environmental laws expect decision-makers to balance several needs in the interest of the public's welfare. In particular, the purpose of the Hawaii Environmental Policy Act ("HEPA") is "to establish a system of environmental review which will ensure that environmental concerns are given appropriate consideration in decision making along with economic and technical considerations...." The purpose of Hawaii's land use law is to "preserve, protect and encourage development of the lands in the State for those uses to which they are best suited for the public welfare...." The purpose of the Hawaii State Planning Act, which guides all county and state agency decisions, is "to set forth the Hawaii state plan that shall serve as a guide for the future long-range development of the State..."

The focus of the bill should be on the capacity and expertise of judges on the subject of "land use law," which includes planning, permitting, and environmental laws... A court that is well versed in the practice of land use and environmental laws will provide timely, consistent, predictable, and clearly articulated decisions to the benefit of all parties involved.

Consistent with the above, we recommend amending the bill to include judicial review of administrative proceedings, proceedings for declaratory judgment on the validity of agency rules, and legislative county decisions related to subdivision, permitting, and zoning. In addition, the name of the court should be changed to, "Land Use Courts," to reflect these broader interests.

Conspicuously absent from this motherhood-and-apple-pie restatement of "land use law?" Property, property protections, and the (constitutional) rights of owners who may have a different vision for their land than environmentalists and state and county agencies. Read the entire testimony here and see if we missed that part. 

One final thought, along the lines of the "slippery slope." If we're going to start creating a whole new substrata of specialized courts because the applicable law is purportedly complex, why stop at environmental law? How about an admin court, a court that only deals with tort issues, or a Property Rights Court? You see where this is going. As the lead video reminds us (a little reminder of the 1980's for all of you who were around then), some things are just bad ideas.