Navahine v. Hawai‘i Department of Transportation: ensuring the constitutional right to a clean environment
By Amy Kraitchman*
Introduction
On June 20, 2024, a historic settlement was announced between 13 youth plaintiffs, the State of Hawai‘i, Governor Green, and the Hawai‘i Department of Transportation (HDOT). The settlement represents a culmination of two years of litigation over whether the youth plaintiffs had a state constitutional right to a clean environment, and if the state had failed to meet its duty in reducing greenhouse gas emissions from the transportation sector. By agreeing to this settlement, all three branches of the state government, but specifically HDOT, agreed to make greater strides towards meeting the requirement under Hawai‘i’s Zero Emissions Clean Economy Target (Zero Emissions Target) to reduce greenhouse gas emissions to “net-negative carbon emissions by 2045.” The Zero Emissions Target was adopted by the state legislature in 2023. With this case, Hawai‘i joins Montana as the two states that have recognized the rights of youth to a clean environment and have committed to making actual strides towards meeting greenhouse gas reduction goals.
The Claims in Navahine
In June 2022, 13 youth citizens of Hawai‘i, ranging in ages 11–18, filed a lawsuit in state court claiming that the Hawai‘i Government has breached their duty under the State of Hawai‘i’s constitution to ensure that younger and future generations have a right to a clean and healthful environment (Hawai‘i Constitution Article XI, § 1) and to protect natural resources under the public trust (Hawai‘i Constitution Article XI, § 9). Specifically, the youth plaintiffs claimed that HDOT has failed to reduce greenhouse emissions and decarbonize the state transportation sector - including harbours, airports, and roads that service privately owned vehicles and public transportation options - as required under the Zero Emissions Target; while there has been a reduction of emissions from transportation, total overall emissions were only on-track to be 30% lower than 2016 levels by 2045 - instead of the required 90–100% of 1990 levels. The youth plaintiffs alleged that HDOT not only was failing to reduce overall emissions but also that they were not taking steps to promote and fund transportation projects that would reduce reliance on fossil fuels. Id. at 40–41.
The youth plaintiffs in Navahine were all born and raised in the Hawaiian Islands and have been affected by climate change due to sea level rise and increased intensity of natural disasters such as hurricanes. Navahine F., the named minor in this case, and some of the other plaintiffs are native Hawaiian; the rest are residents of Hawai‘i who were born and raised in the islands. Sea level rise and increased rains have caused Navahine and others to, at times, be cut off from accessing the broader community when flooding causes the one main road to become untraversable. This not only has led to them being unable to come and go from their homes, but has also affected their ability to use and access natural resources, such as beaches, rivers, and ancestral grounds. Additionally, droughts have affected the youth plaintiffs and their families ability to grow and rely on traditional farming practices as a secure food source for themselves and their community. The youth plaintiffs and their families can no longer rely on traditional food sources and practices, which affects their ability to connect with their ancestors and culture (Id. at 7–26). Lastly, some of the plaintiffs have begun to experience anxiety over climate change and fears about how it will affect them in the future (Id. at 26).
Three US youth climate cases: Navahine, Juliana, and Held
Navahine and the other youth plaintiffs were represented by the environmental non-profits Our Children’s Trust and Earthjustice. Our Children’s Trust is the leading force behind the youth climate justice movement in the U.S. with cases like Juliana v. United States and Held v. Montana. Similar to Navahine, both cases alleged that the government - the U.S. Federal Government and Montana State Government respectively - have a duty to ensure a clean environment for future generations and that the government had breached that duty by promoting and funding the use of fossil fuels and other nonrenewable energy sources. However, compared to Juliana and Held, there are two key differences in Navahine: (1) the Hawai‘i public trust doctrine is part of the state constitution; (2) recent state supreme court cases have held that the constitutional right to a clean and healthful environment meant a right to a “life-sustaining climate system;” and (3) the Hawai‘i State Legislature had recently passed the Zero Emissions Target committing the state to reduce greenhouse gas emissions by 2045.
While Juliana has struggled to reach arguments on the merits of their claim, the youth plaintiffs in Held and Navahine were able to rely on state constitutional requirements to ensure citizens have a “clean environment,” to succeed in getting past initial motions to dismiss by the state. Similarly, Navahine’s argument for enforcement of this constitutional right was strengthened by the fact that the Hawai‘i Supreme Court and Legislature had both previously recognised the effects of anthropogenic climate change and the need to reduce greenhouse gas emissions, allowing the youth plaintiffs to rely on these previous commitments to get the state to make actual strides towards these goals - something that the youth plaintiffs in Held did not have. Together, these past precedents and constitutional rights allowed the youth plaintiffs to reach a settlement under which HDOT, and the State, must take actual steps toward addressing the effects of climate change.
The HDOT’s failure to meet the Zero Emissions Target
In 2023 the Hawai‘i legislature passed a statewide Zero Emissions Target statute requiring HDOT to decarbonize the transportation sector by 2045. The target acknowledged the need to “mitigate . . . the effects of anthropogenic climate change” and to reduce the amount of greenhouse gas emission being released into the atmosphere, land, and waters. Under this statute, HDOT was required to create a statewide plan for how they will work with other state agencies and municipalities to reduce emissions in order to meet the 2045 deadline. However, as the youth plaintiffs stated, since implementing this statute HDOT has taken little action to reduce emission rates or to prioritise alternative transportation methods like bikeways and pedestrian pathways. In fact, greenhouse gas emissions in the state remained high and emissions from the transportation sector alone had increased between 1990 and 2020 despite other federal and state regulations to curb emissions. Further, at the time of filing, HDOT had not implemented any plans or benchmarks to curb the rising rates of emissions as they were required to do. This failure to act had not only violated the youth plaintiffs’ right to a clean and healthful environment, but it was also a violation of the public trust doctrine.
The Public Trust Doctrine
Under the Public Trust Doctrine, a government holds natural resources in trust for its residents to use and enjoy. Originally the public trust was mainly used in the U.S. to protect waters for fishing, navigation, and trade. However, it has expanded over the years to address other public needs such as maintaining stream levels, wildlife habitat, and recreational purposes. In the U.S., states have an unalienable responsibility to maintain public interest in trust resources and to not do anything that will substantially impair trust resources. Illinois Central Railroad v. Illinois, 145 U.S. 386 (1892) (affirming a state’s responsibilities to the trust and their citizens under the public trust doctrine). Thus, in making development and expansion decisions, states must protect these vital resources and ensure that people have the continued ability to access and use them. The public trust doctrine is a powerful tool in environmental advocacy in protecting natural resources and in protecting equitable access to use resources.
Each state has implemented their own public trust. It is, thus, implemented and applied differently across the country. Hawai‘i is unique in that it is one of a few states that has enshrined the public trust in their constitution ensuring that “[a]ll public natural resources are held in trust by the State for the benefit of the people” (Hawai‘i Constitution Article XI, 1). Specifically, the states must hold resources:
For the benefit of present and future generations, the State and its political subdivision shall conserve and protect Hawaii’s natural beauty and all natural resources, including land, water air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State. (Id. Emphasis added)
In Navahine, the plaintiffs alleged that the State has violated their trust duties in regards to the youth plaintiffs by not establishing a plan to reduce greenhouse gas emissions and by not taking meaningful steps to reduce emissions from the transportation sector.
Constitutional Right to a Clean Environment
Also within the Hawai‘i Constitution there is a constitutional right to a clean and healthful environment. This constitutional provision is somewhat unique to Hawai‘i and is not necessarily present in other states or in the U.S. Constitution. Specifically, this section states the following:
Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceeding, subject to reasonable limitations and regulations as provided by law. (Hawai‘i Constitution Article XI, § 9. Emphasis added)
The Hawai‘i Supreme Court affirmed the right to a clean and healthful environment and the public trust doctrine in the context of climate change in the 2022 case In re Maui Elec. Co. (MECO). In MECO, the Court stated that the right to a clean and healthful environment includes a right to “a life-sustaining climate system.” This means that under this statute, the state government was obligated to move away from fossil fuels and other nonrenewable energy sources in order to address and prevent the harmful effects of climate change - for example, in MECO the Maui Public Utilities Commission were required to follow state laws that required them to consider alternative and renewable energy sources in order to lessen the island’s reliance on fossil fuels. The need to mitigate the effects of climate change were, thus, not only needed, but constitutionally required. Additionally, the risk of catastrophic harms to present and future generations, and ecological destruction and damages were especially needed to be considered due to Hawai‘i vulnerability to sea level rise and other “damage[s] caused by an unhealthy climate system.” (p 21–22, n. 15) . Relying on this ruling, the youth plaintiffs claimed that Hawai‘i Constitution Article XI, §9 not only necessitated the implementation of environmental quality laws but also required the state to take steps to decarbonize the transportation sector in accordance with the Zero Emissions Target of emissions 100% below 1990 levels by 2045.
Standing
In response to the allegations, the state filed a motion to dismiss arguing that the youth plaintiffs had not stated a claim upon which relief can be granted. Specifically, they contended that the constitutional sections in question did not allow the plaintiffs to seek judicial relief because a violation had not occurred. According to the defendants, at the time of filing, there had not been a violation of the public trust duties, right to a clean and healthful environment, or of any of the state’s environmental laws because: (1) they did not show that HDOT had violated any specific state environmental laws; (2) some of the laws that the youth plaintiffs did claim HDOT violated were not laws that applied to HDOT; and (3) the objectives under the Zero Emissions Target were “aspirational” and not specific goals HDOT had to meet. Consequently, the youth plaintiffs did not have standing, or the ability, to bring this case. In April 2023, the court determined that the plaintiffs did have standing to proceed with this case and trial was set for June 2024.
The Settlement
Days before the trial was set to begin the youth plaintiffs, HDOT, and the State of Hawai‘i announced a first-of-its-kind settlement in the U.S. In the settlement, the state acknowledged: 1) the youth’s constitutional rights to a clean environment, 2) that they had an affirmative duty to protect public trust resources, and 3) promised to make greater strides towards reaching their zero-emission goal. The state, however, did not admit to breaching the youth’s right to a clean environment.
Specifically, HDOT agreed in the settlement to:
Create a Greenhouse Gas Reduction Plan (reduction plan) within one year of signing the agreement. Every 5 years the plan must be reviewed in order to assess progress towards their zero emissions target of 2045. HDOT must also provide annual updates on their progress towards achieving zero emissions. The youth plaintiffs and the public must be given at least 30 days to comment and provide feedback on the initial plan and on each 5-year update.
Within the plan, HDOT must lay out how they plan to achieve zero emissions, including investing in infrastructure to decarbonize key transportation aspects such as harbours and airports. Progress towards meeting interim targets of the plan will be measured by such factors as: reduction of single occupancy vehicles and vehicle miles travelled (VMT); expansion of public transportation and alternative transportation options (such as bikeways and pedestrian pathways); improvement of safety features for bikers and pedestrians; expansion and support for electric vehicles; conversion of airport and harbour equipment to zero-emission technologies; adopting land use planning policies that support an increase in multimodal transportation (public transit, bikes, etc.); and the availability of new electric vehicles. HDOT is to work with other state and local agencies to work towards achieving these chances.
Establish a voluntary youth advisory council that will advise HDOT on their mitigation and adaptation efforts.
Establish a Climate Change Mitigation and Culture Manager who will work with the HDOT Director and Deputy Directors, and Climate Resiliency Managers at airports, highways, and harbours to address mitigation efforts and implement the reduction plan.
Adjust their programming and budgeting process to better prioritise decarbonization efforts. HDOT will prioritise efforts that mitigate greenhouse gas emissions and reduce VMT. HDOT will invest $40 million into infrastructure to promote and support electric vehicles in the state by 2030. Lastly, HDOT will invest in planting more trees and shrubs (ideally, native and noninvasive species) to help with carbon sequestration. Their stated goal is to plant over 1,000 trees per year.
Conclusion: What does Navahine mean for others?
Following the recent U.S. Supreme Court term, U.S. jurisprudence and federal agencies’ ability to adopt and regulate environmental protections remains uncertain. Cases like Loper Bright Enterprises v. Raimondo throw into question the U.S. Environmental Protection Agency’s (EPA) ability to use existing statutory language to pass new progressive rules to address and mitigate the effects of climate change. However, for public interest groups looking to take stronger actions against governments that have thus far failed to take meaningful actions under commitments to decrease greenhouse gas emissions, Navahine can be a guiding example of how these groups can hold these entities to their commitments without having to compromise in their requests. Navahine initially sought an order requiring HDOT to stop operating the transportation in a way that violated the youth plaintiffs’ rights and an order requiring HDOT to take concrete steps toward achieving zero emissions by 2045. While the State did not admit to violating the youth plaintiffs’ rights in the settlement - meaning that future cases cannot necessarily rely on this settlement as a precedent of past wrongdoing by the State - the youth plaintiffs did succeed in getting HDOT to commit toward actually working towards net-zero emissions by 2045.
Earthjustice and Our Children’s Trust hope that this settlement can work as a model for decarbonizing transportation sectors across the country and the rest of the world. However, not every state, or country, has a constitutional right to a clean and healthful environment or state supreme court precedent, like MECO, stating that this right extends to anthropogenic climate change that climate justice cases that they can rely on. Under constitutions that do not recognize a right to a clean environment, similar arguments may not work, but that does not mean that the commitments made in the settlement are unattainable in those states and countries. Rather, the settlement here can be a model in how to uphold and obligate states to put action, and funds, behind decarbonization efforts that they have committed to in the past. When we think about some state, local, or national commitments to reduce greenhouse gas emissions, some can feel symbolic and like they do not mean anything when there are no plans, timelines, or repercussions for failing to reduce emission levels adequately by a promised date. Especially in the U.S., for example, when commitments can be withdrawn or taken back based on which political party was in power - such as in 2019 when the U.S. began the process of pulling out of the Paris Agreement following President Trump taking office in 2016 - people can sometimes be sceptical if any real change will occur in time to prevent the worst catastrophes caused by climate change.
Similarly, some states like Colorado had committed to “100% net-zero” emission by 2050 but as of March 2024, have yet to ban fracking in the state. When government actions do not align with commitments to make serious change, citizens, especially younger generations who are most impacted, can be left unsure if these emission reduction goals will ever be met. However, Navahine shows that these commitments can, and should, be enforced and governments can be held responsible when they fail to take meaningful steps to achieve them. For other states in the United States, Navahine provides a powerful precedent to hold state agencies accountable for actually working towards binding reduction goals.
Hawai‘i was already a step ahead since they precedent to rely on that acknowledge that a clean environment includes protections from climate change. However, that does not mean the tools used to achieve this commitment and the promises made by HDOT are unachievable elsewhere. The public trust and other doctrines protecting vital natural resources are not just old legal principles but are constitutional and statutory commitments that must be considered, ensured, and upheld in the face of climate catastrophes and a changing environment.
* Amy Kraitchman is the Ocean and Coastal Law Fellow at the National Sea Grant Law Center (NSGLC) at the University of Mississippi. She earned her J.D. with a certificate in environmental and natural resources law from Lewis & Clark Law School and her Bachelor of Science in Environmental Economics and Policy from Oregon State University. She is licensed to practice in California. She is also a member of the Legal Advocacy Taskforce at WYCJ. The views in this blog do not represent NSGLC or the University of Mississippi.