OPINION:
The Hawaii Supreme Court has directly, wrongly and viciously attacked the U.S. Supreme Court and its justices during the past few years. Worse, it has repeatedly, openly and erroneously defied the U.S. Supreme Court and refused to follow its clear precedents, which the Hawaii Supreme Court and every other court must. The Hawaii Supreme Court ignored its sister state courts and the federal courts on issues such as gun control and climate change. Accordingly, it is not worthy of judicial citation as a rogue outlier.
In City and County of Honolulu v. Sunoco LP, the Hawaii Supreme Court allowed Honolulu’s litigation against energy producers to proceed because it purportedly sought to punish alleged deceptive marketing practices, not interstate commerce, even though that was exactly what happened.
Sunoco LP contrasts with dismissals of suspiciously similar cases in jurisdictions such as New York City, Delaware, Baltimore, Annapolis and Anne Arundel County in Maryland, New Jersey and the 2nd U.S. Circuit Court of Appeals. Growing momentum signifies that these lawsuits are legally unsound because climate change, as alleged, is transboundary worldwide, not limited to a particular jurisdiction and not a liability-inducing event. Accordingly, various courts have held that states or municipalities cannot use their tort laws to regulate gasses that cross states, oceans and continents, thus dismissing those cases.
The plaintiffs and their mass-tort law firms essentially accuse the defendant energy producers of promoting false and misleading information about the dangers of fossil fuel products, which purportedly increased greenhouse gas emissions and caused global warming, public and private nuisance, failure to warn, trespass and violations of state consumer laws.
The plaintiffs seek many billions of dollars from the defendants. The plaintiffs are heavily Democratic jurisdictions, their law firms donate heavily to Democrats, and they and environmentalists are two of the Democratic Party’s biggest donors and constituencies.
The Hawaii Supreme Court defied U.S. Supreme Court precedent, and certain Hawaii Supreme Court justices made inappropriate and impermissible rulings by demonstrating an outsize contempt for the U.S. Supreme Court. In Justice Todd Eddins’ rancorous Sunoco LP concurrence, he viciously attacked the Constitution and the U.S. Supreme Court’s jurisprudence and precedents by referring to the Founding Fathers as “the few white men who made laws and shaped lives during the mostly racist and misogynistic very old days.”
He implied that Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas(!) and Samuel A. Alito Jr. were racist because of their 2013 Shelby County v. Holder opinion, which is unrelated to Sunoco LP’s issues. He wrote hypocritically that “the United States Supreme Court could use a little Aloha” and “in Hawai’i, the Aloha Spirit inspires constitutional interpretation” that the U.S. Supreme Court has never recognized.
In Hawai’i v. Wilson, a Feb. 7, 2024, gun control opinion, Justice Eddins’ opinion spitefully attacked the U.S. Supreme Court and blatantly contravened its landmark Heller and Bruen cases. He again wrongly cited the “Aloha Spirit” as justification, stating that “we read the [Second Amendment] differently than the current U.S. Supreme Court” and the Hawaii Supreme Court “has not hesitated to adopt the dissents in U.S. Supreme Court cases” and was “free to accept or reject … an opinion of the U.S. Supreme Court.” The Hawaii Supreme Court justices know that the U.S. Supreme Court is America’s highest court and its rulings are binding on all federal and state courts. They do not care; therefore, courts outside Hawaii should not cite them.
On March 13, 2023, Justice Eddins authored in re Hawai’i Elec. Light Co., saying “the right to a life-sustaining climate system is not just affirmative; it is constantly evolving,” “Hawai’i faces immediate threats. … For the human race as a whole, the threat is no less existential” and “the reality is that yesterday’s good enough has become today’s unacceptable.” Justice Michael Wilson’s concurrence created “due process” rights to “a clean and healthy environment” and “a life-sustaining climate system.” The decision shows that the Hawaii Supreme Court believes judges may change legal standards and goalposts at whim, need not be tethered to actual text or precedent and may “make it up” as they see fit.
Additionally, the Hawaii Supreme Court allowed the plaintiffs to misuse public nuisance law, which, since its 12th-century origins, is supposed to be a tangible, wrongful interference with public lands or waters. It was never intended to apply to transboundary gasses or a substitute for intentional torts or legislation.
The Constitution and its federalism principles make it wrong for a few states to abuse their tort systems to regulate interstate gas emissions and dictate national energy and foreign policy. This is especially so with respect to Hawaii, whose aberrant Supreme Court wrongly and pervasively flouted the Constitution and the U.S. Supreme Court. Thus, as the 2nd Circuit said in New York City v. Chevron, these cases “must be dismissed.”
• John Shu is a legal scholar and commentator who served in the George H.W. Bush and George W. Bush administrations.
Please read our comment policy before commenting.