The climate change lawsuit filed last year by about a dozen young people from Hawaiʻi against the state and its Department of Transportation is similar to others filed over the past several years in other state and federal courts.
Filings in the Hawaiʻi case touched on decisions in the last couple of years on cases brought by youth in Washington and Alaska over alleged failures by state agencies there to do more to reduce greenhouse gas emissions.
in Washington (above) and Shishmaref in Alaska (inset).
Andrea Rodgers, one of the attorneys who represented the Washington youths, is also part of the team of attorneys representing the Hawaiʻi plaintiffs.
The Washington and Alaska youths ultimately lost their cases, which the Hawaiʻi Department of Transportation noted in its motion to dismiss. Attorneys for the Hawaiʻi youth have countered that the case here differs significantly and that the Washington and Alaska cases were not only wrongly decided, they are irrelevant to Hawaiʻi law.
Still, as the parties in the Hawaiʻi case await a decision by Environmental Court Judge Jeffrey Crabtree, who heard oral arguments last month on the DOT’s motion to dismiss, the two mainland cases provide some insight into what he may consider.
In fact, attorneys for the Hawaiʻi youth have encouraged Crabtree to review the dissenting opinions in the Alaska case, which was narrowly decided in a 3-2 decision, and the Washington case, where two justices — including the chief justice — thought a review should have been granted.
The dissents “are more in line with Hawai‘i jurisprudence recognizing the constitutional right to a life-sustaining climate system and the need for judicial interpretation and enforcement of constitutional rights. … The Court should look to the analysis by those justices and judges as far more persuasive and aligned with constitutional law,” the plaintiffs’ attorneys wrote in a footnote in its reply to the DOT’s motion to dismiss.
The Cases
The Alaska and Washington cases were filed in October 2017 and February 2018, respectively. Both involved about a dozen youth plaintiffs suing their governors and various state departments and commissions that were allegedly creating and maintaining systems and policies that were exacerbating climate change.
In the Washington case, the youth plaintiffs argued that the defendants’ creation and support of fossil-fuel-based energy and transportation systems endangered their ability to “grow to adulthood safely and enjoy the rights, benefits, and privileges of past generations of Washingtonians due to the resulting climate change.”
What’s more, they argued that the defendants’ creation, operation and maintenance of those harmful energy and transportation systems violate the state’s Constitution and public trust doctrine.
The youth asked the court to make several declarations, including that they have constitutional rights to life and a healthful environment, and that the defendants have duties under the public trust doctrine to protect and properly manage trust resources, including the atmosphere. They also asked the court to find that the state had violated their rights and its duties.
In addition to seeking the declarations, they sought to have the court enjoin the state from further violating their rights and order an accounting of the state’s greenhouse gas emissions and the submission of a state climate recovery plan.
On August 14, 2018, King County Superior Court Judge Michael Scott granted the state’s request to dismiss the plaintiffs’ claims.
“The young people who are the plaintiffs in this case can (and must) continue
to help solve the problems related to climate change. They can be advocates, urging the Legislature and the executive to enact and implement policies that will promote decarbonization and decrease greenhouse gas emissions, such as a carbon tax, the development of alternative energy sources (including nuclear energy), and international cooperation in climate regulations. These are solutions that must be effected through the political branches of government, and not the judicial branch,” Scott wrote in his ruling.
The Court of Appeals of Washington State supported Scott’s decision in an opinion issued on February 8, 2021.
Although the King County court decided in a 2015 case that the public trust doctrine applies to the atmosphere, “we are not bound by a trial court’s decision, and our analysis does not lead us to the conclusion that the public trust doctrine applies to the atmosphere. Accordingly, we are not persuaded,” the appeals court stated.
Among other things, it concluded that granting the young plaintiffs’ requests would require the court to order the creation and implementation of a climate plan, which would “violate the separation of powers doctrine.”
On October 6, 2021, the Washington Supreme Court denied the plaintiffs’ petition to review the appeals court’s decision.
The Alaska case covered much the same ground as the Washington case and followed a similar trajectory. In October 2018, the Superior Court granted the state’s motion to dismiss. The plaintiffs appealed to the state Supreme Court, which decided on January 28 of last year to affirm the lower court’s dismissal.
The high court had already ruled years earlier in a similar case (Kanuk) that it could not make the legislative policy judgements necessary to grant the relief the youth plaintiffs sought, and that dismissal was prudent because the declarations they sought would not provide them any relief. It decided those findings applied to the more recent case, as well.
The Dissents
In the Washington case, two of the nine Supreme Court justices — chief Justice Steven Gonzales and Justice Helen Whitener — dissented.
Gonzales, who authored the dissent, lamented, “We recite that we believe the children are our future, but we continue actions that could leave them a world with an environment on the brink of ruin and no mechanism to assert their rights or the rights of the natural world. This is our legacy to them described in the self-congratulatory words of judicial restraint.”
He stated that the youths had presented a justifiable argument that they have the right to a stable climate system “that sustains human life and liberty” and had asked the court to recognize “a fundamental right to a healthful and pleasant environment that may be inconsistent with our state’s maintenance of a fossil-fuel-based energy and transportation system that it knows will result in greenhouse gas emissions.”
Global warming foreshadows potential environmental collapse and an unstable climate system that is “conceivably unable to sustain human life and continued enjoyment of ordered liberty under law. Today, we have an opportunity to consider whether these are the sorts of harms that are remediable under Washington’s law and constitution. … The youths sought review to determine what rights they have in the face of these present and future harms. If there is in fact a right to a healthful and pleasant environment, we could so declare,” he wrote.
He stated that the primary issue in the case was whether the youths’ claims were justiciable. “I would have granted review so this court could give meaningful consideration to that question,” he stated.
The Court of Appeals finding that the claims were not justiciable is debatable, he wrote.
With regard to whether the claims should be addressed by other branches of government, he stated, “As the youths and amici point out, the Court of Appeals decision unnecessarily expanded the political question doctrine. The youths’ requested relief would require actions by the other branches of government to resolve complex issues, but the political question doctrine should not foreclose review of the declaratory issue presented. Critically, the Court of Appeals also addressed the substantive issue and held there is no fundamental right to a clean and healthful environment. Whether this is correct warrants our review given considerable statutory authority that suggests otherwise. …
“A declaration of rights from this court is meaningful relief, even if it is not a magic wand that will eliminate climate change. Even though an ‘issue is complex and no option may prove wholly satisfactory,’ the judiciary should not ‘throw up its hands and offer no remedy at all.’ The court should not avoid its constitutional obligations that protect not only the rights of these youths but all future generations who will suffer from the consequences of climate change.”
In the Alaska case, two of the five Supreme Court justices dissented in part.
Justice Peter Maassen, who has since become the court’s chief justice, wrote in his dissent, “In my view, a balanced consideration of prudential doctrines requires that we explicitly recognize a constitutional right to a livable climate— arguably the bare minimum when it comes to the inherent human rights to which the Alaska Constitution is dedicated.”
He admitted that granting declaratory relief would not stop future litigation over the same or similar issues. “But I am no longer convinced that nothing can be gained by clarifying Alaskans’ constitutional rights and the state’s corresponding duties in the context of climate change,” he wrote.
He continued, “When considering the value of declaratory relief, the proliferation of climate-change litigation cuts both ways. On the one hand, as the court cogently explains today, it means that any decision we make here cannot ‘terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding,’ the consideration we found most compelling in Kanuk. But because prudential concerns such as ‘practicality and wise judicial administration’ also guide our use of declaratory relief, we may conclude that it is an appropriate remedy even when terminating controversy is not possible. …
“We decided in Kanuk that the plaintiffs had standing to assert their claims and that their claims for declaratory relief were justiciable. But we have yet to say explicitly whether such claims have a basis in the Alaska Constitution. … Our failure to answer the question now will not eliminate it but will only postpone our answer, in the meantime putting the burden of redundantly litigating it on plaintiffs, the state, and the trial courts, potentially to return to us on appeal again and again until we conclude that prudence finally requires an answer. Given the urgency of the issue, I would conclude that ‘practicality and wise judicial administration’ militate strongly in favor of limited declaratory relief identifying the constitutional source of the right plaintiffs claim.”
He concluded, “In my view, the law requires that the state, in pursuing its energy policy, recognize individual Alaskans’ constitutional right to a livable climate. A declaratory judgment to that effect would be an admittedly small step in the daunting project of focusing governmental response to this existential crisis. But it is a step we can and should take.”
—Teresa Dawson
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