Hawaii Supreme Court says goodbye to federalism

by J.W. Verret, Washington Examiner, May 14, 2024

In Sunoco v. Honolulu, poised for consideration by the U.S. Supreme Court, Hawaii’s decision to allow a climate change lawsuit to proceed against major oil companies represents a critical juncture for American jurisprudence and the principle of federalism at its core.

The litigation model adopted by Hawaii, characterized by suing oil companies under broad claims about their contributions to climate change, demands a national spotlight for its potential to disrupt the constitutional equilibrium between state innovation and federal authority.

Former Supreme Court Justice Louis Brandeis wrote in an opinion about the genius of federalism that “a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

For example, Colorado innovated in legalization of marijuana within its borders but left other states to determine their own appropriate regulation. Delaware innovates in the creation of business entities, and other states respect that the contractual arrangement will be governed by Delaware law. Colorado and Delaware innovated within their borders without overstepping into the jurisdiction of their fellow states or the federal government.

This model of the states as laboratories for innovation is very different from this pattern of states as laboratories for climate lawsuit abuse that has been growing in a few rogue states. The latter vision, embraced by the Hawaii Supreme Court, is a macabre twist on the state laboratory in which states race to the bottom to grab power over other states.

Such litigation not only seeks to adjudicate globally significant issues at the state level but also aspires to impose the regulatory preferences of a few states on the entire nation — and, indeed, the world. This stands in stark contrast to the deliberate division of powers that has historically allowed states to serve as crucibles for policy innovation without infringing upon the collective rights and responsibilities of the United States as a singular entity.

Federalism is a core principle in the Constitution, and in the fabric of America the states were the sovereign entities that created the federal government. In doing so they made a mutual compact embodied in the Constitution and the Bill of Rights.

States don’t get the right to override parts of this compact when they see fit. Yet the Supreme Court of Hawaii has shown a consistent pattern of doing just that in a series of opinions.

In one opinion, the state Supreme Court simply declined to follow the federal Supreme Court precedent on the Second Amendment, declaring that instead the “spirit of aloha” governed Hawaii’s interpretation of the federal Constitution. The “spirit of aloha” was deemed inconsistent with carrying a weapon for self-defense. You can’t make this stuff up.

In the Sunoco case, this court in Hawaii has determined that the spirit of aloha now allows Hawaii courts to serve as de facto national (and indeed global) environmental regulators in place of Congress, the Environmental Protection Agency, and other states and countries.

Surely Congress has preempted this power grab with the plethora of environmental laws on the books. Between that, and the split between the Second Circuit and the Hawaii Supreme Court, there is more than enough to catch the Supreme Court’s attention so it grants the petition for review. The Second Circuit has thrown cold water on the idea that state tort law could be used to regulate climate emissions and held that “such a sprawling case is simply beyond the limits of state law.”

Hawaii’s approach sets a dangerous precedent for the fragmentation of our national legal framework. Given the divergence in judicial interpretations between circuits, such as the conflict between the Second Circuit and the Hawaii Supreme Court, the U.S. Supreme Court’s intervention becomes not just warranted but essential.

The amicus briefs filed in this case, including notable contributions from military leaders such as retired Adm. Michael Mullen and retired Gen. Richard Myers, emphasize the national security implications of these legal strategies. Their insights highlight how undermining the nation’s Strategic Petroleum Reserve and compromising our energy independence could jeopardize America’s military readiness and overall security posture.

The resolution of this case holds the potential to define the contours of state versus federal authority in the context of global challenges such as climate change. It prompts a necessary reevaluation of how the U.S. balances the innovative spirit of individual states with the cohesive and unified approach required to tackle issues that transcend state borders and affect the nation as a whole.

As this case advances, it is imperative for the Supreme Court to consider not only the immediate legal questions presented but also the broader implications for the American constitutional order. The court’s decision could very well determine the trajectory of federalism in the 21st century, influencing how the U.S. navigates the complex interplay between state innovation and national unity in facing global challenges.

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J.W. Verret is an associate professor of law at George Mason University’s Antonin Scalia Law School.