Hawaii governor defends emergency housing powers at state Supreme Court

Environmentalists and Native Hawaiians contrasted the emergency proclamations they say the governor used to sidestep land use regulations against Hawaii's dedication to pushing against Trump's executive orders.

by Jeremy Yurow, Court House News, May 15, 2025

HONOLULU (CN)— Hawaii Supreme Court justices drilled down on whether a chronic housing shortage qualifies as an "emergency" under state law in a case challenging Governor Josh Green's use of emergency powers to address the state's affordable housing crisis.

Environmentalists and Native Hawaiian activists are challenging emergency proclamations issued by Green beginning in 2023 that suspended land use regulations. They say the proclamations allow the government and housing developers — via new government offices created to expedite housing development — to skirt laws that protect the environment, Native Hawaiian burials and historic properties.

"This case is not occurring in isolation. Across the country, we are witnessing a growing trend of invoking emergency powers to bypass legislative deliberation, not to address urgent time-bound disasters, but to pursue major policy goals unilaterally," Attorney Lance Collins said, representing the plaintiffs.

Collins argued that Hawaii's emergency powers statute authorizes such powers only for responding to specific events or occurrences — not for addressing long-term economic issues like housing shortages.

"Chapter 127A does not authorize those things. It permits the governor to respond to emergencies, events or occurrences that threaten life or property, not century-long elements of our current economic system," Collins said. "Nothing in the statute allows executive declarations to bypass the legislature when the legislative process disappoints."

The justices questioned whether affordable housing properly falls within the scope of Chapter 127A, which appears in the section of Hawaii law addressing public safety and internal security.

"It really seems to be talking much more about natural disasters or pandemics. I don't see how affordable housing falls within 127A," Justice Lisa Ginoza said. 

Justice Todd Eddins also probed the limits of what constitutes an emergency.

"Can't you have a situation where you have something that's frustrating over time, like this housing crisis, or what's been deemed a housing crisis, and then it gets to a critical mass?" he asked. "You know, if you have half the population one day homeless, why wouldn't that constitute an emergency?"

Ewan Rayner, the Deputy Solicitor General representing the state, argued that an emergency under the statute doesn't necessarily require a sudden incident but can include "continuing circumstances" that threaten public safety.

"It is defined in both Black's Law Dictionary and in—I don't recall the other dictionary cited—as one of the definitions, a continuing condition is the exact definition. And so it's not necessarily dependent on any occurrence or imminent threat thereof," Rayner said.

According to the University of Hawaii Economic Research Organization, Hawaii's housing crisis has reached alarming levels, with only about 25% of households able to afford the median-priced single-family home of $950,000. A household would need to earn approximately $187,000 annually — nearly 190% of the state's median household income — to afford a typical mortgage.

When pressed on what would limit a governor's emergency powers if housing shortages qualify, Rayner emphasized several constraints.

"We're certainly not arguing that everything the governor does under his emergency proclamation is not subject to judicial review. That's not our position at all. Absolutely we acknowledge the governor cannot violate the Constitution with his emergency powers," he said.

The high court explored an apparent contradiction in the state's history of challenging executive actions from the Trump administration while defending expansive state executive authority.

They also questioned who would have legal standing to challenge the governor's proclamations if the current plaintiffs don't qualify.

The case also raises constitutional questions about a section of Hawaii's Constitution that limits when laws may be suspended.

"If the statute could be read to give the governor that power in this instance, then it would be a violation of Article One, Section 15, then it would be unconstitutional," Collins argued.

Rayner countered, "the legislature has done that here. The particular case that the legislature has expressly prescribed is when the governor has identified a set of circumstances that constitute an emergency."

The justices pressed both sides on whether the legislature had effectively sanctioned the governor's actions by not intervening despite having opportunities to do so.

"Are you aware of the legislature taking any steps to respond to any of these proclamations to rein in or curb what the governor has been doing?" Justice Vladimir Devens asked. 

The court also explored how such an emergency would end.

"Justice Devens is getting at the very sweeping definition of emergency that's implicit in these proclamations," Chief Justice Mark Recktenwald said. "A corollary of that is it's hard to tell when that emergency is over if the emergency wasn't triggered by some specific event. There wasn't a hurricane or a pandemic that swept into our state where we all know when the first known case was, but rather an ongoing problem, perhaps 100 years in duration."

Collins concluded with a warning about the dangers of unchecked executive power. He quoted the late Supreme Court Justice Felix Frankfurter in his dissenting opinion from the 1952 landmark case Youngstown Sheet & Tube Co. v. Sawyer. 

"The accretion of dangerous power does not come in a day. It does come, however, slowly from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority," Collins said. 

The court took the matter under advisement and is expected to issue a ruling in the coming weeks. 

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2023: Suit: Hawaii governor overreaches with housing crisis proclamation | Courthouse News Service

Case: SCAP-24-0000401 - Nakoa, et al v. Governor of the State of Hawaii