Hawaii and its courts are bending the law to force a leftwing energy agenda on the entire country.
The state is at the vanguard of a coordinated legal campaign that aims to enact Green New Deal-type policies by lawsuit. And by all appearances, the state’s judiciary is an eager participant.
Over two dozen blue states, cities, and counties have filed climate change lawsuits against energy providers. But Hawaii stands out in this group given its apparent whole-of-state commitment to climate lawfare. The state itself and key municipalities have filed climate claims against energy companies, seeking industry-altering judgments. Legislators are hard at work on new bills that paint targets for future litigants. And senior judges in the Hawaii courts have ties to climate plaintiff-aligned groups.
Democrats in the state legislature have introduced a first of its kind law that allows individuals and insurers harmed by climate change to sue energy companies over “misinformation.” To be sure, other litigants are attempting to skirt the First Amendment and force energy companies to pay fines over alleged speech about political issues like climate policy. But those cases all feature a state or a city purporting to enforce consumer protection statutes. My organization, the American Energy Institute, is not aware of any state law expressly authorizing insurers or private citizens to sue energy providers over alleged political speech.
The purpose of this radical bill is to bankrupt energy companies or force them to collaborate with a Green New Deal type agenda. Voters do not support electric vehicle mandates or bans on gas-powered appliances. So, Hawaii is sneaking it in through the backdoor – that is, overwhelming energy companies with lawsuits until they agree to do the far left’s bidding.
This new climate lawfare legislation is not Hawaii’s only means of forcing the Green New Deal on an unwilling public. The state itself as well as the counties of Honolulu and Maui filed three separate climate nuisance lawsuits against energy companies. The lawsuits claim that energy providers are responsible for coastal erosion and rising sea levels. The state and the counties are represented by Sher Edling, a dark money-funded San Francisco law firm that represents over two dozen climate plaintiffs.
The strategy is much the same. Bankrupt the defendants or use the threat of damages to forcibly enlist energy companies into the climate cult.
Their motives are hardly unimpeachable, no matter their rhetoric. The state’s lawsuit does not name the sole petroleum refinery on the islands, Par Hawaii, likely the single largest source of emissions in the state. Reports reflect that Par Hawaii executives have contributed $50,000 to Hawaii Democrats. The omission is especially shocking because the plaintiffs will have a difficult time connecting particular climate outcomes to particular source points.
While trial may make for rough-going, corporate defendants often expect to find their footing on appeal. Not so here. Hawaii’s state supreme court is dominated by judicial activists who do not even disguise their support of climate lawfare.
For example, chief justice Mark Recktenwald is a collaborator of the Environmental Law Institute and its Climate Judiciary Project (CJP). As my organization has documented, CJP has extensive ties to the climate plaintiffs. By all appearances, CJP exists to lobby judges under the guise of “education” and give them a pro-plaintiff sneak peek at climate litigation. Recktenwald deserves a modicum of credit for disclosing his ties to CJP sua sponte, but a man on the bench should not have associated with CJP in the first instance.
Chief Justice Recktenwald’s colleague Justice Todd Eddins is a stranger case. Justice Eddins wrote a concurrence agreeing with the state supreme court’s decision to greenlight Honolulu’s climate lawfare suit. Justice Eddins argued that the Supreme Court has wrongly restricted regulatory authority over interstate emissions in past cases. He glibly added that the justices of the high court “could use a little Aloha.”
In past opinions, Justice Eddins has taken the highly unusual view that Hawaii’s past status as a sovereign means it is exempt from constitutional provisions inconsistent with “the spirit of Aloha,” such as the Second Amendment. It is not unusual for a lower court judge to criticize precedent. But it is unusual to see a judge flippantly disregard precedent, especially on grounds that are quite novel, to put it charitably.
The alarming conditions in Hawaii seem to necessitate the intervention of the federal courts. For the sake of consumers everywhere, let us hope it comes soon.
