Unanimous State Supreme Court Opinion in Nakoa v Hawaii

September 11, 2025 (excerpt)

This case concerns the scope of a governor’s executive powers under Hawaiʻi’s emergency management statute, Hawaiʻi Revised Statutes (HRS) chapter 127A. Plaintiffs challenge a series of emergency proclamations relating to affordable housing issued by Governor Josh Green suspending various state law provisions and establishing emergency rules to expedite affordable housing project approval and construction. Since issuing the first proclamation in 2023, the governor has renewed the proclamations every sixty days. The most recent version of the affordable housing proclamation (the Fifteenth Proclamation) remains in effect today…

…We hold that a reviewing court will not disturb an emergency proclamation when (1) the emergency proclamation is rationally related to the health, safety, and welfare of the public, and (2) the executive action taken under the proclamation is reasonably necessary to address the emergency.

Applying this standard, the Sixth through Fifteenth proclamations are valid. These proclamations are rationally related to the health, safety, and welfare of the public, and the executive action taken under the proclamations are reasonably necessary to address the emergency situation….

In contrast, the first five emergency proclamations’ measures addressing affordable housing exceed the governor’s emergency powers. Those proclamations were rationally related to the health, safety, and welfare of the public. But the executive action taken was not reasonably necessary to address the declared emergency. The early proclamations opened project certification to all housing projects, not just affordable housing. Those actions exceeded the governor’s HRS chapter 127A emergency powers….

read … Supreme Court opinion (70pgs) 

HAWAI‘I SUPREME COURT UPHOLDS GOVERNOR’S AFFORDABLE HOUSING EMERGENCY PROCLAMATIONS

News Release 2025-87 from Office of the Attorney General, September 11, 2025 

HONOLULU — The Hawai‘i Supreme Court today issued a decision upholding Governor Josh Green, M.D.’s use of emergency powers to mitigate the state’s affordable housing crisis. In Nakoa III v. Governor of the State of Hawai‘i, Governor Green prevailed against a legal challenge seeking to invalidate his Affordable Housing Emergency Proclamations, with the Supreme Court holding that “the series of emergency proclamations related to affordable housing issued by the governor are valid.”

“More affordable housing is necessary to reduce Hawai‘i’s cost of living,” said Governor Green. “My administration has been working hard to break down obstacles that can impede affordable housing development. The Supreme Court’s decision is another step forward as we continue this crucial work for the people of Hawaiʻi.”

Governor Green issued the first in a series of sixty-day Emergency Proclamations regarding affordable housing on July 17, 2023. These emergency proclamations were issued under emergency powers delegated to the Governor in Hawaii Revised Statutes chapter 127A. The proclamations sought to address the state’s affordable housing shortage primarily by expediting and removing obstacles to the construction of affordable housing projects.

The affordable housing proclamations are still in effect today, with the Fourteenth Proclamation having been issued on July 29, 2025.

The Plaintiffs brought a lawsuit challenging the proclamations, arguing that they exceeded the Governor’s emergency authority, violated separation of powers principles, and violated article I, section 15 of the Hawai‘i Constitution. A circuit court on Maui dismissed the Plaintiffs’ claims.

On appeal, the Hawai‘i Supreme Court upheld the housing proclamations. In making its decision, the court rejected the claims that the proclamations exceeded the Governor’s powers and re-affirmed the principle that “the legislature has granted the governor and mayors the discretion to respond quickly to emergencies.” Among other things, the Supreme Court emphasized the lack of affordable housing’s negative impact on the high cost of living in Hawaiʻi, Native Hawaiians, kūpuna, and “the common sense link between unaffordable housing and elevated stress, physical and mental health conditions.”

Governor Green was represented by Deputy Solicitor General Ewan C. Rayner and Deputy Attorneys General Linda L.W. Chow, Klemen Urbanc, and Chase S.L. Suzumoto. Rayner, who argued the case in the Hawai‘i Supreme Court, praised the decision.

“Today’s decision is an affirmation of the authority given the Governor to respond quickly to emergencies that threaten the health, safety and welfare of Hawai‘i residents,” said Rayner. “The decision recognizes the Governor’s authority to recognize and declare such emergencies, and to take reasonable measures in response.” 

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July, 2023: Housing Emergency Designed to Fail (1st proclamation)

Sept, 2023: Green Backtracks on YIMBY Emergency Order (2nd proclamation)

Feb, 2024: Green Kills off 'Affordable' Housing Group, Hands Authority to HHFDC (5th proclamation) 

CB: Hawaiʻi Supreme Court Puts Guardrails On Governors' Executive Powers

HPR: Hawaiʻi Supreme Court opinion clarifies use of emergency powers | Hawai'i Public Radio

SN: Supreme Court upholds Green's housing proclamations