Feds: Green Fee is 'Illegal Extortion Scheme'

by Andrew Walden

The US Department of Justice, November 13, 2025, filed a Motion to Intervene in the cruise lines' federal lawsuit against Hawaii’s ‘Green Fee.’

Introducing its Motion to Intervene, the DoJ succinctly explains the unconstitutionality of an individual state taxing interstate and international commerce.

While nobody at the Big Square Building was able to figure this out, to the DoJ the logic is “so obvious.”

Here is the core of the DOJ argument:

…On May 27, 2025, Hawaii Governor Joshua B. Green signed Act 96 into law. Off. of the Governor, Historic Green Fee Launched to Combat Climate Change in Hawai’i (June 2, 2025), https://perma.cc/4QJR-7LGR. Governor Green boasted Act 96 is “a groundbreaking move for climate action,” “establishing the nation’s first climate impact fee, known as the ‘Green Fee,’” which is expected to “to generate around $100 million annually” to “fund diverse projects focusing on environmental stewardship, climate resilience and sustainable tourism.” 

ifferential State taxation regimes like Hawaii’s Act 96 are exactly what the Framers sought to avoid when they drafted the Constitution’s Tonnage Clause. The Tonnage Clause “fall[s] within reasonings which are either so obvious, or have been so fully developed, that they may be passed over without remark.” The Federalist No. 44 (James Madison). And those “obvious” reasonings no doubt include States’ taxation of vessels from other States and interference with interstate and foreign commerce. …

If the Tonnage Clause were not clear enough that “No State shall, without the Consent of Congress, lay any Duty of Tonnage,” U.S. Const. art. I, § 10, cl. 3, Congress further clarified in the Rivers and Harbors Appropriations Act of 1884 (Rivers and Harbors Act or RHA) that “No taxes, tolls, operating charges, fees, or any other impositions whatever shall be levied upon or collected from any vessel or other water craft, or from its passengers or crew, by any non-Federal interest, if the vessel or water craft is operating on any navigable waters subject to the authority of the United States, or under the right to freedom of navigation on those waters,” subject to exceptions that do not apply here. 33 U.S.C. § 5(b).

The United States is uniquely positioned to protect its legal and equitable interests at stake in this matter. Whereas private parties, like the existing plaintiffs here, may rightfully sue to vindicate their own economic and speech interests, the United States has “obligations . . . to the general public” to ensure compliance with the Constitution and the supremacy of Federal laws. …This is especially true when the statute in question is the RHA. See United States v. Jantran, Inc., 782 F.3d 1177, 1178–79 (10th Cir. 1967) (explaining that a related “Rivers and Harbors Act was . . . in large part . . . designed to establish a national legal framework that would help regulate harm to the nation’s waterways”).

For these reasons and because the United States can show that it is entitled to intervention under Rule 24, the Court should grant this motion….

Did you notice how clear and simple that was? 

Wow.

Neither Legislators nor the Governor could see this coming.

Along with the Motion to Intervene, DoJ also presents a ‘Proposed Intervenor Complaint’ to be filed after Honolulu Federal District Judge Jill Otake bows to the inevitable.

Here are the opening paragraphs:

1) …Act 96 preys upon American businesses and tourists as means to raise roughly $100 million annually. Hawaii unabashedly boasts that this revenue is not for the purpose of paying for services actually provided to incoming cruise ships or their passengers, but for funding climate change initiatives in Hawaii. This scheme to extort American citizens and businesses solely to benefit Hawaii flies in the face of Federal law twice over….

2. Act 96, set to take effect on January 1, 2026, is the first law of its kind in our Nation. Act 96 would levy a new 11% surcharge on the gross fares paid by a cruise ship’s passengers, prorated by the portion of its voyage spent docked in Hawaii’s ports. Act 96 also authorizes Hawaii counties to collect additional 3% surcharges, bringing the total imposition to 14% of the prorated fares—adding up to hundreds of millions of dollars in new fees over the next decade on out-of-state cruise lines and, by extension, their American citizen customers, seeking to visit one of our Nation’s most beautiful lands. aspects of Act 96. But Federal law preempts both. The Constitution’s Tonnage Clause bars States from imposing any “charge for the privilege of entering, trading in, or lying in a port.” …

3. Yet Act 96 does just that, imposing an impermissible charge that requires cruise ships to make enormous payments based on their “days docked at any port in the State.” Act 96 § 5.1. Such blatant violation of the Tonnage Clause is reason alone to enjoin enforcement of Act 96.

4) … Under the Rivers and Harbors Act, Congress bars States from charging “taxes, tolls, . . . or any other impositions whatever” on vessels “operating on any navigable waters subject to the authority of the United States” ….

5) This Court must act swiftly to preserve the supremacy of Federal law, ending Hawaii’s regime that openly flouts both our Nation’s Constitution and Federal law for its own political gain. If Act 96 is not preempted, more States will follow suit, creating a balkanization of maritime commerce to disguise State’s individualized environmental regimes….

read … Motion to Intervene and Intervenor Complaint

PACER: CASE #: 1:25-cv-00367-JAO-KJM

TW: DOJ supports the cruise industry in its lawsuit against Hawaii: Travel Weekly

L360: US Asks To Join Cruise Industry's Challenge To Hawaii Tax