Hawaii Leaders Mull Potential of Climate Liability Cases

By Kaitlin Sullivan

Hawaii is uniquely situated to bear the burden of climate change, with rising seas, decimated coral reefs and an increase in tropical storms already threatening local livelihoods and indigenous culture as well as the state’s $16.8 billion tourism industry.

Lawmakers and experts met in Honolulu earlier this month to discuss current trends in climate litigation and how Hawaii could leverage its own laws to recoup damages brought by climate change.

“Oil companies like BP should be held responsible for the damage done to our environment by their activities,” Sen. Mazie Hirono said at the climate conference, explaining why she co-drafted a friend-of-the-court brief in support of climate liability lawsuits filed by the cities of Oakland and San Francisco.

Hirono spoke via video at the event, which was also attended by Sen. Brian Schatz and state Rep. Nicole Lowen. Other speakers included legal and environmental experts who discussed the threats climate change pose to the state.

The recent trend of climate liability lawsuits brought by state and local governments has grown to more than a dozen and attempt to pass the economic burden of climate change from citizens to polluters, said Ann Carlson, the Shirley Shapiro Professor of Environmental Law at the UCLA School of Law, where she also serves as co-director of the Emmett Center on Climate Change and the Environment.

Such legal action could put fossil fuel companies on the hook for damages. The state of Rhode Island, cities of New York, Baltimore, Oakland and San Francisco and Boulder as well as counties in California and Colorado are among those that have filed lawsuits against the fossil fuel industry, a wave of claims that has spread from exclusively coastal regions to inland jurisdictions.

Carlson said cases like New York’s, which was dismissed by a federal judge last year but is under appeal, could still be brought on the state level under public nuisance doctrine. The sweeping common law requires plaintiffs to prove substantial harm to the public and could be the premise of future cases. As the science behind climate change becomes more concrete, those filing climate cases against polluters have adjusted their strategies, opening up the possibility for more pointed legal action.

“Scientists now know and can show that there is a linear, nearly one-to-one correlation between greenhouse gas emissions and sea level rise,” Carlson said. “The connection between emissions and harms has gotten much more sophisticated and what that means is that it’s a lot easier to prove a correlation between emissions and damage on the ground.”

In Hawaii, that damage is slated to rack up a bill into the many billions of dollars. Future sea level rise in the Hawaiian Islands is projected to be at least 20 percent higher than the global mean, according to the City and County of Honolulu Climate Change Commission. The fourth U.S. National Climate Assessment predicts a sea level rise of roughly three feet that will cost Hawaii at least $19 billion in damages by the end of the century. That includes roads, bridges and highway infrastructure that will need to be either raised or pushed back to avoid rising seas.

Growing evidence has shown that fossil fuel companies, including ExxonMobil, knew about the detrimental effects their business would have on the climate and yet they worked for decades to create doubts about that science. That could strengthen the cases. Because this type of litigation is still in its infancy, the outcome of the early cases will likely determine whether or not more states and cities bring similar cases in the future, and which laws they will use to do so.  

“The big question here is whether state nuisance law will allow these cases to go forward,” Carlson said. “If they go back to state court, they’re likely to go into discovery and that’s what the oil companies are trying to avoid at all costs.”

Hawaii’s laws concerning indigenous rights provide additional grounds for the state to bring potential climate lawsuits, the panelists said. The state follows U.S. common law and recognizes indigenous rights. Courts as well as state and county agencies are constitutionally mandated to protect “all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua‘a tenants who are descendants of native Hawaiians.”

Because native Hawaiian customs are largely tied to natural resources, state law that protects indigenous rights also protects beaches, streams and native plants that are damaged as a result of climate change.

“This consideration plays a unique role in informing a range of laws including the public trust doctrine that will have a significant impact on climate litigation in Hawaii,” Kapuaʻala Sproat, director of the Ka Huli Ao Center for Excellence in Native Hawaiian Law at the University of Hawaii, said in an interview. “At the county level we had great representation from the various legal offices that are considering every legal tool they have in their toolboxes to address the climate crisis.”

Sproat said a previous case succeeded in restoring four streams to their natural state after they were diverged to feed plantation agriculture. The courts gave significant consideration to the impact these diversions were having on traditional Hawaiian customs and culture. Drought, flooding, rising sea levels and increased erosion will all affect native Hawaiian practices and would likely receive the same consideration in court, she said.

Although a local climate lawsuit has yet to be brought on behalf of the islands, a recent poll showed Hawaiian voters are largely in favor of holding polluters responsible for environmental damages. Seventy-five percent of those polled thought fossil fuel companies should be held liable for some of the costs needed to protect communities from climate change and a similar portion supported climate litigation.

Hawaii was the first state to implement legislation that aligns with the Paris Agreement and is one of several states with environmental rights provisions in their constitutions. The state’s legislators want Hawaii’s proactive climate policy––which includes committing the state to 100 percent renewable energy by 2045 and a proposal for the state to become the first to tax carbon emissions––to set an example for climate change mitigation worldwide.

“We have to take a series of decisive actions to deal with the damage that is being done to our planet by climate change,” Hirono said.

Correction: An earlier version of this article incorrectly identified Nicole Lowen as a U.S. congresswoman. She is a state representative.