Environmental Court: Hopes for Stricter Law Enforcement, Fears of Improper Influence

Twenty-two Hawaii judges will devote time each month to hearing environmental cases, which may make rulings more predictable for all sides.

Honolulu Civil Beat - July 2, 2015

By: Anita Hofschneider

If there are new challenges to the construction of telescopes on Mauna Kea, the expansion of Turtle Bay Resort or the Honolulu rail system’s impact on historic sites, they could be heard in Hawaii’s Environmental Court, which debuted Wednesday.

Maui’s longstanding debate over sugar cane burning is already headed that direction.

Supporters hope the new court will bring more consistency to environmental rulings. Last year, opponents said judges designated to the Environmental Court would be prone to improper influence.
The court, which has a calendar and designated judges but no new facilities, is the second in the nation. Vermont was first, but while its environmental court deals largely with land use and zoning cases, Hawaii lawmakers excluded chapters of law dealing with the state Land Use Commission and shoreline setbacks from the new court’s jurisdiction after hearing criticism from the development lobby.

That leaves out some high-profile environmental conflicts, such as the ongoing case against D.R. Horton’s 11,750-home Hoopili project.

Sen. Mike Gabbard, who formerly led the Senate Energy and Environment Committee, said that he stripped land use and other chapters from the bill because he thought a narrower focus would increase its likelihood of success. The measure was opposed by numerous business organizations, including the Hawaii Chamber of Commerce, the Land Use Research Foundation and the Hawaii Crop Improvement Association.

“Our concern was that including land use might make it much harder to pass,” Gabbard said.

The Legislature didn’t set aside any money to help fund the Environmental Court. Instead, the judiciary is relying on existing personnel and judges to staff the court, and plans to divert resources from internal programs to cover the costs.

Because the establishment of the Environmental Court doesn’t change any existing laws and many of the judges assigned to the court already hear environmental cases, the court’s impact is largely procedural. Some attorneys have privately questioned whether it’s necessary.

But advocates are optimistic that the Environmental Court will help provide consistency and predictability to how certain laws are applied.

That’s important to Jessica Wooley, director of the state Office of Environmental Quality Control. The former state representative points to a raft of litigation over Chapter 343, the law relating to environmental impact statements, which she said is outdated. Recent lawsuits include three complaints challenging the expansion of Turtle Bay Resort on Oahu’s North Shore.
“We need clarity. Everybody wants clarity,” Wooley said. “In their decision making (the Environmental Court judges) will provide that clarity, if the Legislature cannot.”

What to Expect

Because there’s no money set aside to support it, the Environmental Court is essentially a procedural change in which a group of 22 judges will set aside time to hear environment-related cases each month.

Marti Townsend, executive director of the Sierra Club, said environmentalists have been advocating for over a decade to create the court due to concerns that laws against illegal dumping and overfishing weren’t being enforced.

From July 1, 2009, to June 30, 2014, there were more than 4,000 Department of Land and Natural Resources rule violations filed in District Courts and more than 300 statutory violations. Within the same period, a few dozen rule and statutory violations were filed in Circuit Courts.

Townsend said that environmental issues tend to receive lower priority, especially when it comes to criminal prosecution The hope is that having dedicated court days and judges will bring “concerted attention to environmental violations in the short term, and in the long term, better protect natural resources for the public,” she said..

The court deals with over a dozen chapters of law including but not limited to underground storage tanks, water and air pollution and historic preservation. Any lawsuits involving any of the statutes under the jurisdiction of the Environmental Court will be under the purview of the court, even if they touch on multiple areas of law.

Hawaii Supreme Court Chief Justice Mark E. Recktenwald has assigned 22 judges to the court. Several of them have ruled on significant environmental cases in the past.

Judge Ronald Ibarra of the Third Circuit Court in Hilo ruled against a luxury subdivision called Hokulia, halting the development in 2004. Judge Joseph E. Cardoza from the Second Circuit Court in Maui dealt a blow to the Superferry in 2007 when he forced the controversial interisland ferry to stop operating because it hadn’t completed an environmental assessment.

Judges who will serve on the court haven’t always sided with environmental activists. Judge Greg K. Nakamura, also of the Third Circuit Court, ruled in favor of the Thirty Meter Telescope last year after opponents contested the state’s approval of a conservation district use permit. First Circuit Court Judge Jeannette H. Castagnetti from Honolulu ruled against Earthjustice in May 2013 when the environmental law firm sought to require the state to conduct environmental reviews before issuing or renewing permits for collecting aquarium fish.

Paul Achitoff, an attorney with Earthjustice, said that the Environmental Court won’t affect cases he is litigating regarding Kauai County and Hawaii County’s anti-GMO ordinances because those are in federal court. He thinks the Environmental Court’s success will depend on whether judges understand environmental laws and the importance of enforcing them.

“I hope that the creation of the court reflects a general recognition that environmental issues, particularly in Hawaii, are extremely important and that enforcement of environmental laws has not received the emphasis that it deserves,” he said. “If the judges who end up on that court recognize that this is true, and they do something about it, that’s a good thing … It’s going to depend more on the judges than the system.”

Elijah Yip, an attorney for the law firm Cades Schutte, said he thinks that the environmental court can lend consistency to decision-making, but there may be drawbacks.
“You have one judge as opposed to several judges who may have different perspectives. So if it’s a perspective you don’t really like, you’re stuck with that judge,” he said.

Impact on Business

While many environmental activists are supportive of the new court, the business community opposed its creation during the 2014 legislative session. Representatives of several groups who testified against the measure, including the Chamber of Commerce and the General Contractors Association, declined to comment for this story.

In 2014, organizations including the Hawaii Farm Bureau Federation, Building Industry Association of Hawaii and the Hawaii Contractors Association argued that an environmental court was not necessary.

The Land Use Research Foundation, an advocacy group for developers, wrote in testimony that the “specialized knowledge of and experience in environmental law required by those sufficiently qualified to be appointed as Environmental Court judges will likely have prejudiced those decision makers, so that decisions made may not be neutral.”

The lobbying organization also contended that specialized courts can be more prone to improper influence.

“Such a situation is often experienced in agencies where powerful and influential groups use political pressure to maneuver and control the appointments process, and in some cases, the tenure and salaries of judges sitting in these smaller, isolated courts,” the group wrote.

The Hawaii Crop Improvement Association, the trade association for the local seed industry including Monsanto and Sygenta, similarly criticized the proposal.

In testimony, then-executive director Alicia Maluafiti suggested that creating an Environmental Court was akin to creating an animal court that would require judges to be pet owners.

Gabbard from the Senate Energy and Environment Committee said he doesn’t recall if anyone lobbied specifically against including land use in the Environmental Court’s jurisdiction. But the state Office of Planning advocated to include it and even wanted to change the court’s name to “Land Use Courts” to reflect the broader jurisdiction.

The senator ultimately amended the bill to remove several proposed areas of jurisdiction, including statutes relating to Boards of Water Supply, the Land Use Commission, exceptional trees and the Public Utilities Commission. But he included an exception that also allows lawyers to file motions to transfer cases to the court and gives the chief justice of the Hawaii Supreme Court discretion in assigning cases to the court.

Lessons from Vermont

Hawaii’s Environmental Court jurisdiction is broader than Vermont’s, covering criminal cases as well as civil cases. In Vermont, just two Superior Court judges deal with about 250 civil cases a year.
Vermont Superior Court Judge Thomas Walsh, who has served on the court for the past four years, told Civil Beat that the Environmental Court was established in 1990 and was originally envisioned to handle state-level land use and zoning regulations.

Eventually the court’s jurisdiction was expanded to hear appeals from municipalities. That’s led to an increase in cases, but Walsh said that over time the cases have become more complex as the court has developed a body of law that makes the process more predictable.

From his perspective, that helps developers and the business community because they have a better idea how laws will be applied and enforced. The court also is able to resolve cases more quickly because the judges have the option to limit discovery, the process of obtaining evidence before a trial.

“The court many times has to balance business and economic resources with natural resource interests. Having a specialized court that is skilled in making those balances lends to a much more predictable process and continues to encourage meaningful and smart growth and development,” Walsh said.

That’s a goal that many environmental advocates are hoping Hawaii’s Environmental Court will help the islands achieve.

During a University of Hawaii press conference last week, retired Division of Conservation and Resource Enforcement official Randy Awo told a story about speaking to Niihau fishermen who said the traditional knowledge of migratory bird patterns was no longer entirely reliable because overfishing had changed where the birds fly.

“The Environmental Court is just one of many things that helps us to breathe life back into tradition by restoring what’s been lost or what’s on the verge of being lost,” he said.