{"id":14955,"date":"2023-02-03T12:25:51","date_gmt":"2023-02-03T22:25:51","guid":{"rendered":"https:\/\/www.environment-hawaii.org\/?p=14955"},"modified":"2023-02-03T14:32:53","modified_gmt":"2023-02-04T00:32:53","slug":"transportation-agency-seeks-to-dismiss-climate-lawsuit-filed-by-hawai%ca%bbi-youth","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=14955","title":{"rendered":"Transportation Agency Seeks to Dismiss Climate Lawsuit Filed by Hawai\u02bbi Youth"},"content":{"rendered":"\n
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“Youth like Kaliko, K\u0101’onohi, and Navahine (pictured here) have a right to a ‘healthful environment’ under the Hawai\u2018i state constitution, but under current state policy transportation pollution will increase to an alarming 9.15 million metric tons of greenhouse gas emissions by 2030,\u201d a press release from the non-profit law firms Earthjustice and Our Children\u2019s Trust stated. Credit: Earthjustice\/Our Children\u2019s Trust<\/figcaption><\/figure>\n\n\n\n
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For 15-year-old Navahine Fukumitsu, climate change has made it harder for her family to farm kalo on its kuleana lands in Hakipu\u02bbu, O\u2019ahu, which it has done for more than ten generations.<\/p>\n\n\n\n

\u201c[C]limate change is altering the growing season, decreasing crop yields, and threatening Navahine\u2019s ability to continue this cultural practice. Among other threats, heavy rains, which are becoming more common, flood the ancient \u2018auwai, destroying crops, and forcing Navahine\u2019s \u2018ohana to spend days of hard labor rebuilding the ditch system. On the other extreme, extended drought periods dry out and damage the \u2018auwai and contribute to decreasing stream flows, which can harm wetland kalo that is dependent on cool, flowing water. The extreme weather fluctuations also degrade habitat for native stream life and waterbirds that are dependent on this ecosystem for their survival and are part of the landscape of resources that Navahine\u2019s \u2018ohana both relies upon and cares for in perpetuating traditional farming practices. Additionally, rising seas are infiltrating the groundwater table and raising the pH of the soil, which also reduces crop yields; some of the \u2018ohana\u2019s lo\u2018i are located only six inches above sea level, and if urgent reductions in greenhouse gas emissions are not made, these lands will be underwater within Navahine\u2019s lifetime.\u201d<\/p>\n\n\n\n

That\u2019s according to a complaint Fukumitsu and 13 other Hawai\u02bbi youths filed last June against the state and its Department of Transportation (DOT) for failing to follow through on direction from the Legislature and other agencies and even its own plans on how to meet greenhouse gas (GHG) emission reduction targets.<\/p>\n\n\n\n

The complaint, filed by attorneys with Earthjustice and Our Children\u2019s Trust, alleges that the DOT\u2019s practices and policies have led to increased emissions from the transportation sector that have, in turn, contributed to harmful climate change impacts the 14 young plaintiffs have experienced and expect to endure for years to come.<\/p>\n\n\n\n

The complaint describes how sea level rise, changing weather patterns, and increasing ocean temperatures and acidification are harming their ability to live in a clean, safe, healthful environment, and in the case of Nawahine and others, to continue traditional Hawaiian practices. <\/p>\n\n\n\n

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Flood damage from the April 2018 flood event in north Kaua\u2018i. “This climate change-induced ‘rain bomb’ … cut off road-based access into and out of Kal\u0101\u2019s community for several weeks,” the youth plaintiff’s complaint states. Credit: UH SOEST<\/figcaption><\/figure>\n\n\n\n
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Despite Hawai\u02bbi being a leader in adopting climate change legislation and setting ambitious greenhouse gas emission reduction targets, its 2045 emissions are projected to be just 30 percent lower than they were in 2016, the complaint states. (The 2008 Hawai\u02bbi Clean Energy Initiative, or HCEI, set a goal of reducing greenhouse gas emissions 70 percent by 2030.)<\/p>\n\n\n\n

The transportation sector shoulders a lot of the blame for the state falling short of its goals, the plaintiffs argue.<\/p>\n\n\n\n

\u201cTransportation is increasing as the dominant source of carbon dioxide emissions in Hawai\u2019i, from approximately 49 percent of total carbon dioxide emissions in 2008 to approximately 59 percent in 2018,\u201d it states. And according to a 2017 Department of Health report, transportation emissions are projected to increase 41 percent between 2020 and 2030, while emissions from other sectors are projected to drop.<\/p>\n\n\n\n

This, despite a 2011 HCEI roadmap that described how to meet its emission goals: 1) reduce vehicle miles traveled to four percent below 2011 levels by 2020, 2) put 40,000 electric vehicles on the road by 2020, and 3) reduce ground transportation petroleum consumption 70 percent by 2030.<\/p>\n\n\n\n

That same year, the DOT published its Hawai\u2018i State Transportation Plan, which aimed to support the HCEI goal by creating a transportation system that included bicycle and walking options, as well as more use of alternative fuels and electric vehicles.<\/p>\n\n\n\n

Still, a 2015 analysis of the HCEI commissioned by the state Department of Business, Economic Development and Tourism found that the transportation  sector was falling short.<\/p>\n\n\n\n

In their complaint, the plaintiffs noted that the DOT has been adding 31 new miles of vehicle lanes each year since 2000, which \u201cdoes not alleviate traffic or reduce greenhouse gas emissions from transportation. Rather, it proportionally increases vehicle miles traveled, increasing vehicle emissions and exacerbating climate change. If this trend continues, an additional 20.25 [million metric tons of carbon dioxide equivalent emissions] will be added to the atmosphere between 2021 and 2050, moving Hawai\u2018i even further away from achieving the Zero Emissions Target.\u201d (In 2018, the Legislature passed a bill that became Act 15, which established a state \u201czero emissions\u201d target to sequester more atmospheric carbon and greenhouse gases than were emitted by no later than 2045. After January 1, 2020, agency plans, decisions, and strategies were required to consider their impact on the state’s ability to \u201cachieve the goals in this section, weighed appropriately against their primary purpose.\u201d)<\/p>\n\n\n\n

The department has not reduced barriers to electric vehicle adoption, electrification of transportation, public transit, walking, and cycling, the plaintiffs argue.<\/p>\n\n\n\n

The complaint also notes that Hawai\u2019i currently has the second lowest number of charging ports per EV in the country, the DOT has still not funded or implemented its decade-old Statewide Pedestrian Master Plan, it\u2019s made limited progress towards implementing a 2003 Statewide Bike Plan Hawai\u2019i, and it has not convened the Sustainable Transportation Forum for the past five years.<\/p>\n\n\n\n

\u201cIn response to a public records request, HDOT identified only five \u2018highway plans and actions\u2019 it has taken since 2011 to address greenhouse gas emissions: (1) implementing an internet broadband pilot program to increase opportunities for rural commuters to work from home; (2) administering the federally funded Transportation Alternatives Program which to date has awarded $5 million (approximately 0.0036% of HDOT\u2019s total 2021 operating budget) for third-party, multimodal projects; (3) securing a vendor to assist state and county agencies with procuring and ordering EVs; (4) adopting SmartTRAC, a program that assesses how well transportation projects address state priorities relative to the requested funding; and (5) conducting a 2019 test of a sustainable concrete mix designed to reduce the carbon footprint of road construction,\u201d the complaint states, adding that these actions are \u201cwholly inadequate.\u201d<\/p>\n\n\n\n

Given the DOT\u2019s track record, the plaintiffs asked the court to declare that the state and DOT have a public trust obligation under Article XI, Section 1 of the Hawai\u2018i Constitution \u201cto protect and conserve the climate system and atmosphere, and all natural resources affected by climate change, for the benefit of present and future generations,\u201d and that they have violated that section “by establishing, maintaining, and operating a state transportation system that fails to preserve, protect, and maintain Hawai\u2018i\u2019s public trust resources.\u201d<\/p>\n\n\n\n

The plaintiffs also asked the court to declare that their right to a clean and healthful environment under Article XI, Section 9 \u201cencompasses the right to a life-sustaining climate system\u201d and that the defendants have violated that right.<\/p>\n\n\n\n

The plaintiffs also asked the court for appropriate and necessary injunctive relief, including but not limited to: <\/p>\n\n\n\n

1) Ordering the defendants to stop perpetuating a transportation system that breaches their public trust duty, is incongruous with climate mitigation mandates, and infringes upon the plaintiffs\u2019 constitutional rights; <\/p>\n\n\n\n

2) Compelling the defendants to take concrete steps under prescribed deadlines to bring its transportation system in line with their constitutional duties and the plaintiffs\u2019 rights; and <\/p>\n\n\n\n

3) Exercising jurisdiction and oversight as necessary, including the appointment of a special master.<\/p>\n\n\n\n

The complaint argues that a declaration that DOT is violating its constitutional obligations and the plaintiffs\u2019 rights is timely because the department is in the midst of updating its transportation plan, which will govern projects for the next decade<\/p>\n\n\n\n

Furthermore, the Infrastructure Investment and Jobs Act recently signed by President Joe Biden, \u201cchannels over 1.746 billion dollars in federal funds to HDOT for transportation related projects,\u201d the complaint states, adding that without a court order, the department will continue its long-running patterns and practices that violate its constitutional duties and the young plaintiffs\u2019 rights.<\/p>\n\n\n\n

State Response<\/em><\/strong><\/p>\n\n\n\n

On August 22, state attorney general Holly Shikada, one of her deputy attorneys, and a handful of lawyers from California and Washington, D.C., filed a motion to dismiss.<\/p>\n\n\n\n

They argued that the relief the plaintiffs sought, such as an injunction ordering the DOT to create new regulatory programs, can\u2019t come from the courts; that direction must come from the Legislature.<\/p>\n\n\n\n

\u201cThe court cannot appoint its own super-director of the agency, particularly one that would be responsible not only for ensuring that HDOT implements a regulatory program according to judicially established deadlines but also evaluating those regulations to ensure their ‘compliance\u2019 with the court\u2019s directives. What\u2019s more, the oversight plaintiffs seek could last for decades,\u201d they wrote.<\/p>\n\n\n\n

They added that the plaintiffs\u2019 beef isn\u2019t really with the DOT, but with the countless people who choose to use gas-powered vehicles. <\/p>\n\n\n\n

\u201cImagine if, overnight, everyone in Hawai\u2018i abandoned fossil-fuel-running vehicles and switched to electric vehicles. The GHG emissions that plaintiffs complain about would drop dramatically, yet the physical facilities that HDOT maintains would exist and operate exactly the same. Thus, it is clear that HDOT is not causing plaintiffs\u2019 injuries,\u201d they wrote. Even if the court ordered the DOT to expand bike lanes, \u201cprivate individuals would retain the freedom to choose whether to use bike lanes or to continue driving cars,\u201d they added.<\/p>\n\n\n\n

Despite the plaintiffs\u2019 recounting of the emission reduction goals, recommendations, and plans that the DOT has failed to meet, implement, or create, the department was not required by any specific law to do so, the state attorneys argue.<\/p>\n\n\n\n

\u201cPlaintiffs cite no law requiring such plans. And where plaintiffs describe a plan or action by HDOT, they do not allege any facts that could demonstrate a violation of law\u2014for example, they assert that HDOT has failed to timely reconvene its Sustainable Transportation Forum to work on a plan for achieving emissions reductions, but they identify no legal obligation to do so,\u201d they stated in their motion to dismiss.<\/p>\n\n\n\n

They argued that even if the youths alleged that the DOT violated its constitutional duties under an environmental law, that claim should have been addressed via a contested case hearing.<\/p>\n\n\n\n

And they pointed out that youth plaintiffs in mainland cases similar to Hawai\u02bbi\u2019s have lost.<\/p>\n\n\n\n

\u201cBecause Hawai\u2018i agencies are only able to control a small portion of the globe\u2019s greenhouse gas emissions, they cannot realistically control climate change\u2019s local impacts, like sea level rise and shoreline erosion. The Washington Supreme Court recently rejected such an approach \u2026, finding the plaintiffs\u2019 concerns about emissions that a state agency had \u2018allowed into the atmosphere\u2019 could not be \u2018recharacterized\u2019 as an obligation to protect local lands and waters. This court should also reject an overbroad reading of the public trust doctrine for the same reasons,\u201d they wrote.<\/p>\n\n\n\n

They continued, \u201cTellingly, three other courts\u2014one Federal Court of Appeals and two state appellate courts\u2014have each dismissed similar cases on political question grounds. While there are some differences in the underlying state laws in those other cases, the considerations that led those courts to decline to decide a political question are equally present here. For example, \u2026the Washington Court of Appeals held that resolving the case would \u2018inevitably involve resolution of questions reserved for the legislative and executive branches.\u2019\u201d <\/p>\n\n\n\n

With regard to an Alaska case, the state\u2019s attorneys stated that the plaintiffs there also \u201csought a declaration that the state had violated their constitutional rights, that it had a public trust duty to protect the state\u2019s natural resources, and that it had violated its public trust and other obligations by failing to sufficiently reduce greenhouse gas emissions. The court found that resolving those claims would not \u2018settle\u2019 any legal issues between the parties for a number of reasons, including that the court lacked the ability and expertise \u2018to provide the plaintiffs any certain basis on which to determine in the future whether the State has breached its duties.\u2019\u201d<\/p>\n\n\n\n

Rebuttal<\/em><\/strong><\/p>\n\n\n\n

In filings opposed to the state\u2019s motion to dismiss, the plaintiffs\u2019 attorneys clarified that they are not asking the court to take control of the DOT. They just want the court to declare that the state and DOT have violated \u201cestablished legislative and constitutional mandates to mitigate climate change, in a case where HDOT itself demonstrates a need for clarity, focus, and attention.\u201d<\/p>\n\n\n\n

\u201cFar from a \u2018political question,\u2019 interpreting and defending the Constitution is the courts\u2019 appointed role in our democratic system,\u201d they wrote.<\/p>\n\n\n\n

Regarding the defendants\u2019 argument that injunctive relief requires the court to make policy judgments about steps and timing necessary to achieve GHG reduction objectives, the plaintiffs pointed out, \u201cthe Legislature has already set these objectives and mandated that defendants \u2018decarboniz[e] the transportation sector,\u2019 and \u2018utilize the best available science, technologies, and policies to reduce greenhouse gas emissions, with the overarching goal of achieving the statewide Zero Emissions Target \u2018as quickly as practicable, but no later than 2045.\u2019<\/p>\n\n\n\n

\u201cThe Legislature has also dictated that after January 1, 2020, \u2018agency plans, decisions, and strategies shall give consideration to the impact of those plans, decisions, and strategies on the state\u2019s ability to achieve\u2019 Zero Emissions.\u201d<\/p>\n\n\n\n

Whether or not people still chose to continue to drive gas-powered vehicles if there were more EV charging stations, electrified transportation options, etc., \u201cspecific emissions\u2013reducing projects (such as bikeways and pathways) will never be funded or constructed if they are not included in defendants\u2019 plans now,\u201d given the agency\u2019s past disregard for environmental mandates approved by the Legislature, the plaintiffs\u2019 attorneys argued.<\/p>\n\n\n\n

With regard to the state\u2019s claim that the plaintiffs failed to identify a violation of any statute governing how the DOT functions, their attorneys countered, \u201c[I]n attempting to relegate the constitutional public trust to some secondary, subordinate duty in relation to HDOT\u2019s \u2018statutory function,\u2019 HDOT contradicts established law. As the Hawai\u2018i Supreme Court has made clear, \u2018[t]he State\u2019s constitutional public trust obligations exist independent of any statutory mandate and must be fulfilled regardless of whether they coincide with any other legal duty.\u2019\u201d<\/p>\n\n\n\n

\u201cDefendants, moreover, disregard the numerous statutes enacted by the Legislature to address the escalating \u2018climate emergency. \u2026 Defendants seek to dismiss them as mere \u2018aspirational\u2019 goals that cannot be \u2018violated\u2019\u2014at least not yet, until it is too late to do anything about it,\u201d they added.<\/p>\n\n\n\n

They pointed out that the Legislature recently mandated a reduction of statewide greenhouse gas emissions  so that by 2030, emissions would be half of what they were in 2005, \u201cconfirming the need for near-term action in pursuing a trajectory of emissions reductions to achieve the end goal.\u201d<\/p>\n\n\n\n

The attorneys disputed the state\u2019s argument that the youths\u2019 claims should have been addressed in a contested case hearing first. They also explained how the decisions in the Washington and Alaska cases do not apply here.<\/p>\n\n\n\n

They pointed out that unlike in Washington, the Hawai\u2018i Supreme Court has made it clear that the public trust relates to \u201cprotection of air and other trust resources affected by climate change,\u201d and recognized the associated constitutional \u201cright to a life\u2013sustaining climate system.\u201d<\/p>\n\n\n\n

While both the Alaska and Washington cases were wrongly decided, \u201cneither state\u2019s constitution enshrines a judicially enforceable constitutional right to a clean and healthful environment that expressly provides that \u2018any person may enforce this right,\u2019 or includes a public trust mandate directing the state to \u2018conserve and protect … all natural resources,\u2019\u201d they wrote.<\/p>\n\n\n\n

A declaration from the court would terminate any controversy as to the existence, scope, and violation of the plaintiffs\u2019 rights and the defendants\u2019 duties, they argued. \u201cInjunctive relief would similarly terminate the controversy as it would ensure that defendants fulfill their statutory and constitutional responsibilities. In sum, Youth Plaintiffs readily satisfy the standing test for declaratory relief,\u201d they wrote.<\/p>\n\n\n\n

Environmental Court Judge Jeffrey Crabtree heard arguments on the state\u2019s motion to dismiss on January 26.<\/p>\n\n\n\n

\u2014 Teresa Dawson<\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

For 15-year-old Navahine Fukumitsu, climate change has made it harder for her family to farm kalo on its kuleana lands in Hakipuʻu, O’ahu, which it has done for more than ten generations. “[C]limate change is altering the growing season, decreasing … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":14956,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11,507],"tags":[3],"class_list":["post-14955","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-climate-change","category-february-2023","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/14955","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=14955"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/14955\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/14956"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=14955"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=14955"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=14955"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}