Anthony J. Ferate| Guest columnist
Federal court judges have repeatedly stated that climate litigation cannot be brought under state and federal law, and the Clean Air Act provides the only answer for addressing alleged damages over greenhouse gas emissions.
In 2018, federal Judge William Alsup dismissed the climate lawsuits brought by the cities of San Francisco and Oakland in what The New York Times called a “stinging defeat.”
In 2021, the Second Circuit’s decision in City of New York v. Chevron denied the Big Apple the ability to pursue litigation against energy companies in court, stating that federal law trumps state law when it comes to climate change litigation; the Second Circuit held that “such a sprawling case is simply beyond the limits of state law.”
In January this year, a Delaware Superior Court judge dismissed some of the Delaware lawsuit’s major claims. The judge specifically held “that claims in this case seeking damages for injuries resulting from out-of-state or global greenhouse emissions and interstate pollution, are pre-empted by the [Clean Air Act]. Thus, these claims are beyond the limits of Delaware common law.”
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But even more to the point, the U.S. Supreme Court has stated on numerous occasions that some issues must be decided not under state law, but under federal law. Those include matters with an interstate or international character, such as those at issue in air pollution or emissions implicated in the current climate lawsuits. When paired with the Court’s 2011 AEP vs. Connecticut unanimous ruling where it declared “borrowing the law of a particular State would be inappropriate,” there is no room for state court climate lawsuits.
Enter Hawaii. The chief justice of the Supreme Court in Hawaii, Mark Recktenwald, has taught courses to instruct other judges about subjects with titles such as “Judiciary and the Environmental Rule of Law: Adjudicating our Future.” Other justices of the Hawaii Supreme Court have attended these courses. So it seemed more than predictable that the city of Honolulu would bring nuisance claims that energy companies knew decades ago that the oil and natural gas industry cause climate change, and try the case under state law where they might have home court advantage. Similarly, it was predictable that the chief justice wrote the 82-page opinion in the case ordering Honolulu’s case to proceed under state law.
The concept, in and of itself, should sound novel. The adjective that might come to mind might be astonishing, if only because such an expansion of state laws to address climate change is exactly that. But the details of how the Hawaii court got there are the more remarkable elements.
First, Hawaii acknowledged the existence of the federal precedents, but nonetheless dismissed them as irrelevant. By replacing federal common law with the Clean Air Act, Hawaii reasoned, that it opened an opportunity for Hawaii to regulate in place of traditionally federal authority.
Then, Hawaii reasoned, that federal law did not apply to this specific case. Although the face of the complaint focused on emissions that created climate change, the Hawaii court self-adjusted the complaint for the plaintiff city to suggest that the marketing campaigns from the energy companies ― which, again, did not run in Hawaii ― were the basis of the complaint. If this reasoning isn’t enough, try the concurring opinion from Justice Todd Eddins, who separately reasoned that, “[e]nduring law is imperiled. Emerging law is stunted,” before launching ad hominem criticism at the U.S. Supreme Court that concludes with the contention that the “United States Supreme Court could use a little Aloha.”
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Justice Eddins underpins his opinion by stating that, “Aloha Spirit inspires constitutional interpretation” and bases the contention on a state statute that defines the meaning of Aloha Spirit. But used in this case, Aloha Spirit looks less like a legal principle of law than a subjective way to ignore foundational principles. Summarized, Justice Eddins prefers an outcome-determinative approach in opposition to a belief that the judiciary should say what the law is, not what it should be.
An afternoon of research has failed to turn up the “Spirit of Aloha” clause in the Constitution, let alone a statutory exemption for the theory. Nor does the Hawaii Supreme Court provide any authority for ignoring longstanding jurisprudence. The energy companies sued by Honolulu filed a writ of certiorari with the Supreme Court. And while some may argue that it is unnecessary to reconsider all of the longstanding precedent the Supreme Court has articulated, there are localities and states closely watching this cert request to determine if the “Spirit of Aloha” legal theory can be applied to nuisance theory lawsuits to advance climate change litigation. The Supreme Court should see the Hawaii action for what it is, accept cert, and help the Hawaii Supreme Court to understand that it is subject to well-established U.S. constitutional standards of jurisprudence and the rule of law to the detriment of Honolulu and climate change activists nationwide.
Anthony J. Ferate is an attorney in Oklahoma City.
