SouthernWorldwide.com – For years, California was recognized as the epitome of environmental extremism. However, that distinction now appears to have shifted to Hawaii. Situated approximately 2,400 miles from the West Coast and lacking its own oil fields, the Aloha State heavily relies on imports to sustain its vital tourism industry, power its electrical grid, and ensure the smooth functioning of daily life.
Despite its dependence on imported fuel, Hawaii has embarked on an aggressive legal campaign against energy companies. Hawaii Attorney General Anne Lopez, in conjunction with the cities of Honolulu and Maui, is pursuing lawsuits against the oil and gas industry, seeking billions in damages for alleged climate-related harms. These extensive legal actions highlight concerns about political influence within Hawaii’s judicial system and underscore the need for federal oversight and preemption of the state’s actions against the energy sector.
A significant aspect of these lawsuits is their convenient exclusion of Par Pacific, the state’s sole refinery and primary supplier of gasoline and jet fuel, along with its subsidiary, Par Hawaii. Campaign finance records indicate that executives from Par Pacific have made donations to prominent Democratic leaders in the state, including Governor Josh Green. Nevertheless, under Hawaii’s legal argument, the energy refiners operating within the state, not to mention the energy consumers, are identified as the primary sources of emissions causing direct harm to the islands’ environment.
Furthermore, courts in other predominantly Democratic jurisdictions have consistently dismissed similar lawsuits. These rulings often cite established legal precedent that places the federal government’s authority in charge of regulating interstate and international emissions standards.
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Concerns about impartiality have been raised regarding prominent judges in Hawaii, including those involved in the Honolulu case. These judges have reportedly collaborated with the Environmental Law Institute (ELI) and its Climate Judiciary Project (CJP). Notably, ELI and the CJP share staff and donors with Sher Edling LLP, the law firm representing Honolulu and numerous other local governments in their climate change litigation against energy companies.
The close association between ELI and climate litigation lawyers has not prevented three justices on the Hawaii Supreme Court from participating in events sponsored by ELI-CLP. Chief Justice Mark Recktenwald, in particular, directed his clerk to assist an expert involved in the climate cases in understanding the Daubert standard. This standard is used by judges to evaluate the scientific testimony of expert witnesses. Previously, he had provided a “helpful” primer to Kerry Emanuel, an expert retained by climate plaintiffs in a separate case against the energy industry.
Despite these behind-the-scenes interactions, Chief Justice Recktenwald authored the Hawaii Supreme Court’s opinion in the Honolulu case, which resulted in a significant victory for the climate plaintiffs. One of the chief justice’s colleagues expressed his views even more directly in a concurring opinion, suggesting that the U.S. Supreme Court should reach a similar outcome, irrespective of federal law, because the high court “could use a little Aloha.”
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Following the Hawaii Supreme Court’s decision not to dismiss the Honolulu case, the presiding lower state court has permitted the plaintiffs’ attorneys to engage in extensive discovery. This process is described as a “fishing expedition” in service of a broader anti-energy lawfare strategy. Hawaii’s courts should have paused these proceedings while the fundamental legal question of whether state tort claims against energy companies for global climate change belong in federal or state court is being considered by the U.S. Supreme Court in the case of Suncor Energy v. Boulder County.
Outside of Hawaii, judges in California, New Jersey, and other states have temporarily halted climate litigation for a clear reason. The Supreme Court receives thousands of petitions annually but agrees to hear only a small fraction of them. In the exceptionally rare instance that a case reaches the nation’s highest court, there is a distinct possibility that the justices could establish a new legal standard or completely invalidate entire categories of claims.
Honolulu is effectively rushing to obtain maximum document production and hundreds of sworn executive testimonies before a potential ruling that could narrow or eliminate the legal basis for all these lawsuits. A court-appointed special master overseeing the process has ordered energy companies to search their records for 75 years of documents related to the production and sale of energy products globally.
Beyond the immense cost this extensive document review would impose on the companies, the documents are unlikely to prove consumer deception. Proving deception requires a company to conceal information that the public was not already aware of. Consumers have been informed about global warming for decades, yet they have continued to use fossil fuels at levels comparable to those from 50 years ago.
While additional information about climate change might be beneficial, it has not been sufficiently compelling to persuade a significant portion of the world to reduce their demand for the energy necessary for activities such as cooling their homes, powering their devices, and even vacationing in Hawaii. This is assuming, of course, that by then the Aloha State has not itself turned on the travel industry for its alleged role in aiding and abetting oil and gas producers.
Michael Toth is the director of research at the Civitas Institute.
