JOHN YOO, MICHAEL TOTH: Aloha State lawsuits push radical climate agenda
For years, California was the poster child of environmental overkill. That distinction now belongs to Hawaii. About 2,400 miles away from the West Coast and with no oil fields of its own, the Aloha State depends on imports to fuel its tourism industry, run its grid and make everyday life possible.
But Hawaii’s oil dependence hasn’t kept it from waging an all-out litigation war against energy companies. Hawaii Attorney General Anne Lopez along with Honolulu and Maui are suing the oil and gas industry for untold billions based on alleged climate-related harms. These sweeping cases reveal the political corruption that infects Hawaii’s legal system and demands federal investigation and pre-emption of Hawaii’s shakedown of the energy industry.
First, the lawsuits conveniently exclude the state’s sole refinery and leading supplier of gasoline and jet fuel, Par Pacific and its subsidiary Par Hawaii. According to campaign finance filings, its executives have donated to the state’s Democratic leaders, including Gov. Josh Green. But under Hawaii’s theory of the case, the energy refiners in the state, not to mention its energy users, produce the emissions that most directly harm the islands’ environment.
Second, the courts in other solidly blue jurisdictions have repeatedly rejected identical cases, citing longstanding precedent putting the federal government in charge of setting interstate and international emissions standards.
But prominent Aloha State judges, including those involved in the Honolulu case, have collaborated with the Environmental Law Institute (ELI) and its Climate Judiciary Project (CJP), which calls the impartiality of the state judiciary into question. The organizations share staff and donors with Sher Edling LLP, the law firm representing Honolulu and numerous other local governments suing energy companies over climate change.
The close relationship between ELI and climate lawyers didn’t stop three justices on the Hawaii Supreme Court from participating in ELI-CLP sponsored events. One of them, Chief Justice Mark Recktenwald further directed his clerk to help an expert working on the climate cases to understand the Daubert standard "used by judges to assess an expert witness’s scientific testimony" and previously provided a "helpful" primer to Kerry Emmanuel, an expert retained by the climate plaintiffs in another case against the energy industry.
Despite these behind-the-scenes efforts, Chief Justice Recktenwald authored the Hawaii Supreme Court’s opinion in the Honolulu case, which delivered a major win for the climate plaintiffs. One of the chief justice’s colleagues displayed his bias even more overtly in a concurrence that suggested the U.S. Supreme Court should reach the same outcome regardless of the text of federal law because the high court "could use a little Aloha."
SUPREME COURT MUST FREEZE THE CLIMATE EXTORTION OF OUR ENERGY INDUSTRY
Third, after the Hawaii Supreme Court declined to dismiss the Honolulu case, the presiding lower state court has let the plaintiffs’ attorneys use discovery to conduct a fishing expedition in service of a broader anti-energy lawfare campaign. Hawaii’s courts should have suspended their proceedings while the foundational legal question underlying the roughly 30 identical lawsuits — whether state tort claims against energy companies for global climate change belong in federal or state court — is currently under consideration by the U.S. Supreme Court in Suncor Energy v. Boulder County.
Outside of Hawaii, judges in California, New Jersey and elsewhere have paused climate litigation for an obvious reason. The Supreme Court gets thousands of petitions every year, but agrees to hear only a tiny fraction of them. In the extremely rare event that a case makes it to the nation’s highest court, there’s a distinct possibility the justices will set a new standard or wipe out entire categories of claims altogether.
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Honolulu is effectively racing to extract maximum document production and hundreds of sworn executive testimonies before a ruling potentially narrows or eliminates the legal basis for all these suits. A court-appointed special master responsible has ordered the energy companies to rummage through their files for 75 years of documents connected with the production and sale of energy products around the world.
Apart from the massive cost that this paper chase would impose on the companies, the documents won’t prove consumer deception. That requires the company to conceal information that the public didn’t know already. Consumers have been aware of global warming for decades but have chosen to use fossil fuels at the same levels they did 50 years ago.
More information about climate change may be helpful but it’s not sufficiently compelling to get most of the world to stop demanding the energy they need to do things they want, like cool their homes, power their devices, and maybe even vacation in Hawaii. That’s assuming the Aloha State hasn’t by then turned on the travel industry for aiding and abetting oil and gas producers.
Michael Toth is the director of research at the Civitas Institute.