Hawaii’s Legal Battle Against Energy Companies

California once symbolized extreme environmental measures, but Hawaii now holds that title. Hawaii, 2,400 miles from the West Coast and lacking its own oil fields, relies on imports for its tourism industry, utility grid, and daily lives.

Despite this dependence, Hawaii has been aggressive in its legal actions against energy companies. Attorney General Anne Lopez, Honolulu, and Maui are aiming for billions in lawsuits due to alleged climate impacts. These cases indicate political flaws in Hawaii’s legal system, possibly warranting federal intervention.

State Refinery Exclusion

The lawsuits notably omit Hawaii’s only refinery and top gasoline supplier, Par Pacific and its unit Par Hawaii. Executives from these entities have contributed to Democratic leaders, including Governor Josh Green. The energy refiner and users in Hawaii, according to the state’s lawsuit logic, contribute significantly to environmental emissions.

Rejected Cases Elsewhere

Courts in other predominantly Democratic areas have declined similar cases, affirming that emissions regulation falls within federal jurisdiction. Prominent Hawaii judges, including those in the Honolulu case, have associated with the Environmental Law Institute (ELI) and its Climate Judiciary Project (CJP), bringing judicial impartiality into doubt.

ELI and climate lawyers share personnel and backers with Sher Edling LLP, representing Honolulu in its environmental lawsuits. This connection hasn’t deterred participation from Hawaii Supreme Court justices in events hosted by ELI-CLP. Chief Justice Mark Recktenwald has even guided his clerk in aiding an expert on the climate litigation, sharing insights into the Daubert standard for evaluating scientific testimony.

Despite these efforts, Chief Justice Recktenwald drafted the opinion favoring climate plaintiffs in the Honolulu case. Furthermore, another justice suggested the U.S. Supreme Court should match this outcome, regardless of federal legislation, because the high court “could use a little Aloha.”

Fishing Expedition in Litigation

After the Hawaii Supreme Court allowed the Honolulu case to proceed, state courts have permitted plaintiffs’ attorneys to conduct broad discovery efforts in an expansive anti-energy campaign. Proceedings should have been paused pending resolution of a relevant legal question—whether state tort claims in climate change lawsuits against energy companies are federal or state jurisdictional—currently under U.S. Supreme Court review in Suncor Energy v. Boulder County.

Judges in other states have halted climate litigation due to the Supreme Court’s limited acceptance of cases each year. A Supreme Court hearing is rare, but could potentially redefine or dismiss numerous claims.

Honolulu is hastily collecting extensive documentary evidence and testimonies before a court ruling possibly restricts or annuls the legal foundations for these lawsuits. A special master has required energy firms to search through 75 years of records regarding global energy product production and sale.

This document pursuit imposes massive costs and won’t prove consumer deception, which requires undisclosed company information. Awareness of global warming hasn’t deterred consumers from using fossil fuels as they did decades ago.

More climate change awareness might assist, but doesn’t compel a global halt in energy demand for daily activities, including cooling homes, powering devices, or vacationing in Hawaii. Hawaii may eventually target the travel sector for allegedly supporting oil and gas businesses.

Michael Toth works as research director at the Civitas Institute.

John Yoo is the Heller Professor of Law at the University of California, Berkeley, a distinguished visiting scholar at the School of Civic Leadership, a senior research fellow at the Civitas Institute at the University of Texas, Austin, and a nonresident senior fellow at the American Enterprise Institute.