What Does Right to Clean Environment
By Michael Levine
Are county zoning rules just environmental laws by another name? The Hawaii
Supreme Court says yes.
When it overturned an appeals court ruling last month, the Supreme Court
cleared the way for private citizens and community groups to file lawsuits to
enforce local zoning regulations as part of a personal constitutional right to a
The decision gives private citizens across the state another avenue to air their
concerns about projects in their neighborhoods and could change the way land
use laws work in Hawaii. But some worry the ruling could cause havoc and might
make it that much harder to develop land.
The Hawaii Constitution outlines a number of rights that all people in the state
enjoy. The right to "life, liberty and the pursuit of happiness" mirrors the
Declaration of Independence. The local rights to due process, privacy and to bear
arms are derived from similar promises made in the U.S. Constitution's Bill of
But Hawaii's bedrock legal document guarantees some additional powers unique
to the islands. The section on traditional and customary rights is one such
example. The state also promises all who live here the right to a "clean and
healthful environment" in Article XI, Section 9.
The right can be enforced by any person against any party, public or private, the
Constitution promises. That might sound pretty clear, but it's not.
• The Hawaii Supreme Court in July ruled that private citizens can sue to enforce
• That power had previously been reserved for the government, so some worry the
decision could make it even harder to develop in Hawaii
• Mark Recktenwald wrote the opinion and was then passed over by Gov. Linda
Lingle, who instead nominated Katherine Leonard to be chief justice.
The Hawaii Constitution says the right is "defined by laws relating to
environmental quality, including control of pollution and conservation,
protection and enhancement of natural resources," and includes the caveat that
this enforcement right can be exercised "through appropriate legal proceedings,
subject to reasonable limitations and regulation as provided by law."
That's where it gets complicated. What are "appropriate" proceedings? What are
"reasonable" limitations? What are environmental laws?
The case in question arose after the Waiola Waters of Life Charter School
acquired agricultural land on the Hilo side of the Big Island in 2003. Neighboring
residents — who convened as the Ala Loop Homeowners — argued that the
developer needed to obtain a special use permit before moving forward with
plans for a working farm and school campus on a 28-acre parcel formerly known
as the Sunshine Farm.
The County of Hawaii, which had originally said the school was exempt from the
law requiring a permit, citing a different section of state law, eventually turned to
the courts for an answer. After years of procedural delays and legal battles, the
Intermediate Court of Appeals (ICA) ruled in 2009 that the neighbors had no
"right of action" to sue.
In effect, the ruling meant the public could testify at county planning commission
hearings and write letters to the local newspaper editor, but could not challenge
zoning decisions in court. Only the government could enforce zoning regulations,
so the lower court had no jurisdiction to hear the case at all.
After the Native Hawaiian Legal Corporation [pdf] and Hawaii's Thousand
Friends [pdf] asked the Hawaii Supreme Court to weigh in on the case, an 81-
page decision overturning the ICA [pdf] was handed down July 9, 2010.
Associate Justice Mark Recktenwald wrote for the 4-1 majority that Chapter 205
— which created the Land Use Commission, land use districts and county zoning
powers — was enacted to "to preserve, protect and encourage the development of
the lands in the State for those uses to which they are best suited for the public
Supreme Court July 9
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The decision said the Hawaii Constitution's guarantee of a right to a clean and
healthful environment is self-executing and requires no further act of the Hawaii
Legislature to have effect.
"The framers (of the Hawaii Constitution) understood that private enforcement
would 'complement' government enforcement, rather than be supplanted by it,"
the decision said.
The right to challenge zoning rules in court will not be totally unfettered. Courts
must still decide whether a plaintiff has standing. The majority opinion explained
the difference between a right of action and standing:
"The private right of action inquiry focuses on the question of whether any
private party can sue to enforce a statute, while the standing inquiry focuses on
whether a particular private party is an appropriate plaintiff." (emphasis in
Limitations on standing — which differentiate those with a horse in the race from
the general public — have historically been used to keep the courts out of the
business of answering broad hypotheticals, said land use attorney Robert
Thomas. That approach leaves generalized grievances in the hands of lawmakers
who are better equipped to address political matters.
Thomas has blogged about the case extensively at inversecondemnation.com and
also worked on the Pono vs. Molokai Ranch case that established precedent in
this area of Hawaii law before it was relegated to the history books by the Ala
"Based on the court's reasoning, at least, it at appears to be very broad," Thomas
said of the potential impact of the Ala Loop decision. "Essentially this is sort of
the start of it and we don't know where it's going to go, but it's possible now ...
that anyone with standing can run to court. So will that exponentially expand (the
number of lawsuits)? We don't know."
Thomas was not alone in his skepticism of the decision.
In an 82-page concurring and dissenting opinion [pdf], Associate Justice Simeon
Acoba agreed that the Ala Loop homeowners had standing to challenge the
zoning decision in court because they were adjoining landowners who could
argue the decision would interfere with the enjoyment of their property.
But, Acoba said it was "unnecessary to decide that Ala Loop had a private right of
action" to enforce zoning rules. He warned the majority's approach "invites
The Office of the Attorney General — which represented the charter school in the
case — asked the Supreme Court to revisit its decision, filing a motion for
reconsideration [pdf] on July 19.
"(T)he opinion has the very real potential for significantly diminishing the force
of the administrative processes and proceedings previously established by the
Legislature and the counties for the purpose of protecting each person's right to a
clean and healthful environment," the motion argues. "There is a real possibility
that pending proceedings will be abandoned altogether in favor of actions
brought directly in the courts.
"The opinion of the court in this appeal abandons precedent and extends the
common law of Hawaii with regard to 'environmental quality' and 'land use' far
beyond its prior boundaries," it says.
The Ala Loop Homeowners filed their response [pdf] Aug. 4.
The argument pits Gov. Linda Lingle and Attorney General Mark Bennett against
Associate Justice Recktenwald, Lingle's longtime compatriot, her appointee to
the high court and one of six potential nominees for chief justice.
Maui attorney Isaac Hall told the Honolulu Star-Advertiser that it "took a lot of
courage" for Recktenwald to author the Ala Loop decision with the potential
nomination hanging over his head. Hall said he was immediately concerned
about Recktenwald's candidacy after reading it.
Instead, Judge Katherine Leonard — who was on the three-judge ICA panel to
rule in the state's favor in the Ala Loop case — was Lingle's surprising nominee to
be Supreme Court chief justice. She will remain on the appeals court after the
Hawaii Senate voted 14-8 against her confirmation last week.
DISCUSSION Do you believe the Hawaii Supreme Court's decision will make it
harder to develop in Hawaii? Join the conversation and learn more about land