A Partial Rebuttal To Professor Callies: 1993-2010 HAWSCT Environmental Record Most Concerned With Public Participation

by Robert Thomas, InverseCondemnation.com

In a recently-published law review article, U. Hawaii lawprof David Callies found that "the Moon Court [1993-2010] decided some of the state’s most important property and related environmental and Native Hawaiian rights cases in favor of the various non-governmental organizations bringing them (Sierra Club, Earthjustice, Hawaii’s Thousand Friends, and the Native Hawaiian Legal Corporation) approximately eighty-two percent of the time, sixty-five percent of which reversed the Intermediate Court of Appeals," a result he concluded was "appalling."

Well here's the counterpoint, a paean to the Moon Court from another U.H. lawprof, who asserts that the court's environmental jurisprudence wasn't so much focused on outcome, but rather on process. Yes, plaintiffs won a whole lot, but don't be fooled the results, she writes, because the court was only insuring that the doors to the courthouse remain open to all comers under the environmental standing doctrine:

At first blush, the Hawai‘i Supreme Court’s environmental review jurisprudence under the leadership of Chief Justice Ronald T.Y. Moon—twelve major decisions from 1993 until 2010—appears "pro-environmental" in terms of the classic "environment versus development" paradigm. In eight of those decisions, the citizens challenging state or county agencies for evading the public review process required by Hawai‘i Revised Statutes (H.R.S.) chapter 343 won major, sometimes stunning, victories. On deeper examination of all twelve cases, however, the environmental review jurisprudence of the Moon Court appears to be concerned less with substantive results than with process, focusing on the likely benefits to agencies and all stakeholders of more robust public participation, a core value of chapter 343. In its vigorous enforcement of chapter 343, the court has identified sensible boundaries to the law, while implicitly rejecting objections from the losing agencies (and the private developers) about the short-term economic implications of its rulings. The court has stayed true to the original intent of the law even when that meant squaring off against other branches of state government. Despite the criticism, the Hawai‘i Supreme Court, under the leadership of Chief Justice Moon, maintained its judicial independence and bravely protected public participation in the environmental review process.

Denise E. Antolini, The Moon Court's Environmental Review Jurisprudence: Throwing Open the Courthouse Doors to Beneficial Public Participation, 33 U. Haw. L. Rev. 581, 582 (2011) (footnotes omitted).

We commented on the Hawaii court's loose environmental standing rules in this post, which Professor Antolini cited as us "criticiz[ing] [the doctrine] as 'throwing open the barn door after the horses have been let out.'" Id. at 607 & n. 190. We stand by that assessment, since in Hawaii environment cases, plaintiff standing is pretty much an exercise in clever pleading and not a realistic check on the courts becoming entwined in policy disputes.  And it's been that way for a while. 

The article is a quick and enjoyable read, and even contains a few "locals only" touches that we appreciate, including this passage:

The story of the Superferry itself after Justice Duffy’s blockbuster decision is a legal, political, economic, and social tale almost beyond belief. The controversy included protests in the water and on land, heated and over-heated debates in high circles, a circuit court injunction against Superferry operations, painful legislative arm-twisting, a gubernatorial power-grab, a dissolved injunction, headlines galore, and neighbors arguing with neighbors in Longs Drugs.

Id. at 608. You know you're from Hawaii if you get the Longs reference. 

The article concludes with a reference to the court's opinion in County of Hawaii v. Ala Loop Homeowners, 235 P.3d 1103 (Haw. 2010), suggesting that because it was authored by current Chief Justice Mark Recktenwald, the "judicial generosity toward citizen participation" so pronounced in the Moon era will continue "for the foreseeable future." Id. at 634.