When does a person or organization have enough legal interest in an issue such that it can be a plaintiff in lawsuit? Are there any systematic checks in place to keep the courts from being co-opted for political ends? These were key issues raised by the Hawaii Supreme Court’s opinion in the “Hawaii Superferry EIS case,” Sierra Club v. State of Hawaii Dep’t of Trans., No. 27407 (Aug. 31, 2007). This post looks at the procedural issue of “standing,” an issue that took up a majority of the court’s 104-page opinion.
An earlier post focuses on the substantive issue of whether the State DOT erred when it determined that improvements to Maui’sKahului Harbor necessary to the Superferry’s Maui operation were within the categorical administrative exemptions tothe Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343,and therefore no Environmental Assessment was necessary.
I. Standing: Keeping Courts Out of Politics
Despite the seeming proliferation of lawsuits on policy andpoliticalquestions, courts are supposed to limitthemselves to adjudicating actual disputes and remedying actualinjuries. One tool courts use to insulate themselves from politicalquestions is the doctrine of “standing.”
“Standing is concerned withwhether the parties have the right to bringsuit.” Sierra Club v. Hawaii Tourism Auth., 100 Haw. 242, 250, 59 P.3d877, 885 (2002). The standing requirement, according to the Hawaii Supreme Court, isa “prudential rule of judicialself-governance,” meaning that the court is supposed to policeitself and enforce limitations to distinguish which cases it canadjudicate, and whichcasesare too abstract or too political to be heard. It is a preliminaryrequirement in every lawsuit, requiring the plaintiff prove it hassuffered enough harm to insure the litigation is attempting to remedyan injury, and is not a being used as a vehicle for judicial validation of the plaintiff’spolitical value preferences:
We abhor the use of courtrooms as political forums tovindicate individual value preferences, [and the] proper forum for thevindication of value preferences is the legislature . . . not thejudiciary.
Hawaii’sThousand Friends v. Anderson, 70 Haw. 276, 283, 768 P.2d 1293, 1299(1989). Requiring that a plaintiff demonstrate injury is designed to protectthe courts from being used as forums for political or philosophicaldebate by limiting accessto parties who are injured and who have actual disputes, because judges, unlikelegislators, are not supposed to apply their own political and valuepreferences to a case. These type of determinations are supposed to be made in thedemocratic branches — the Legislature and the Executive — which,unlike courts, are directly responsive to the electorate.
Thus, it isdisappointing to witness much of the newspaper and other commentaryregarding the Superferry directed at what the courts “should” do as a policy matter, because thecommentator assumes the result in litigation is driven bywhether judges believe the Superferry is a good thing or not. Courtsretain their legitimacy as neutral arbiters only if they donot needlessly thrust themselves into political and policy questionsbeyond the scope of their expertise, and which are betterleft to the political branches.
When a court strays from these self-imposed “rules of self-governance,” it rightly exposes itself tocriticism that the result is political, not legal.
II. Superferry EA Standing
After the State DOT determined that the improvements to the state’sKahului Harbor necessary for the Superferry’s Maui operations fellwithin a categorical exemption to the preparation of an EnvironmentalAssessment under the Hawaii Environmental Policy Act, Haw. Rev. Stat.ch. 343, DOT was sued by the Sierra Club, Maui Tomorrow, and theKahului Harbor Coalition.
These groups claimed DOT should not have exempted the harbor improvements were not properly within the categorical exemption, and that that they were threatened with four types of injury: (1) endangered species could be adversely impacted by a high-speed ferry; (2) the Superferry could increase the introduction of alien species; (3) surfers, divers, and canoe paddlers who use Kahului Harbor could suffer adverse impacts; and (4) the threat of increased traffic on the road next to the harbor entrance. Slip op. at 63-64, 67-68.
The circuit court rejected the lawsuit, determining that theseplaintiffs were not injured by DOT’s categorical exemptiondetermination, and therefore did not have standing. In other words,the circuit court implicitly determined these plaintiffs were using a lawsuit tovalidate their own policy preferences (Superferry is bad), not because they had suffered –or were in danger of suffering — any real harm caused by the exemptiondetermination.
The HawaiiSupreme Court reversed, holding that the plaintiffs had standing tochallenge DOT’s categorical exemption of the harbor improvements. Thecourt held:
[Plaintiffs] have established all that can be asked ofthem in a HEPAcase — they have: (1) shown both procedural andthreatened injury in that the lack of an EA increases the risk of harmto their concrete interests; (2) established that theyhave concrete interests based on a geographical nexus to the KahuluiHarbor area; and (3) articulated clear chains ofcausation explaining the manner in which the unmitigated activity mayhave an effect on their interests — demonstratingthat the threat to their interests is at least nontrivial. If theseAppellants do not have standing to bring this claim, it is hardto imagine who, if anyone, would.
Slip op. at 76.
III. Barn Doors and Environmental Standing
Did the Superferry decision, as some have opined, open thefloodgates to environmental lawsuits? Not really, since that door wasthrown wide open by the court years ago. It has long been a canon of Hawaii Supreme Court doctrine that “the needs of justice” is a “touchstone”of its standing rules, and that such needs are especially lax in cases involving “environmental concerns,” which have “less rigorousstanding requirement[s]” than run-of-the-mill civil disputes. Thecourt’s rationale for reducing standing in environmental cases to whatis essentially a pleading exercise is based in its reading of theHawaii Constitution:
The less rigorous standing requirement this court applies in environmental cases draws support from the Hawai`i Constitution, article XI, section 9. Entitled “Environmental Rights,” that section states
Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law.
Haw. Const., art. XI, § 9, cited in Life of the Land, 63 Haw. at 171 n.5, 623 P.2d at 438 n.5 and Hawai`i Tourism Auth., 100 Hawai`i at 276, 59 P.3d at 911 (Moon, J., dissenting); see also Avis K. Poai, Recent Developments, Hawai’i’s Justiciability Doctrine, 26 U. Haw. L. Rev. 537, 563 n.214 (2004) (stating that “the most persuasive argument for environmental standing is that it has been constitutionally recognized,” and citing article XI, section 9, of the Hawai`i Constitution).
Slipop. at 42-43. The difficulty with a standard as amorphous as “the needs of justice,” of course, is that it is nearly impossible to apply in a way consistent with the standingdoctrine’s supposed gatekeeping function. Every plaintiff, I would think, should believe their cause is just. What the court appears to have held is that by the “anyperson may enforce” language in Article XI, the people gave state courtsquasi-advisory opinion jurisdiction in cases involving”environmental” claims, however that term is defined.
The court took great pains to distinguish Sierra Club v. Hawaii Tourism Auth., 100 Haw. 242, 59 P.3d 877 (2002),a case in which a plurality of the justices decided that the SierraClub lacked standing to complain that the state tourism bureau had notundertaken an EIS before it spent public money on promoting Hawaiitourism. Slip op. at 72-76. Citing to Chief Justice Moon’s dissent in Hawaii Tourism Authority, the court distinguished between injuries to the plaintiff, as opposed to injury to the environment. Slip op. at 46 (“although plaintiffs must show that some environmentally-related interest was injured, the ultimate inquiry depends on injury to the plaintiffs themselves, not the environment”).
That distinction, however, while superficially seductive, is ultimately unconvincing: the courts’ focus in “environmental” cases is on the plaintiff’s claimed environmental interest, with little attention paid to the claimed injury. In other words, whether the court accepts the legitimacy of the plaintiff’s claimed interest is the most important factor, and injury is very nearly presumed by the mere fact that the plaintiff is alleging it.
Once plaintiffs’ legitimate interests are determined to include fear ofalien species and protection of whales, itdoesn’t take much beyond “butterfly effect” connect-the-dots logic to see how the proposed harbor improvements could have some effect, however remote, to impact those interests. See, e.g.,slip op. at 70 (“indirect effects” due to increased ease of non-Mauihunters and fishers to Maui; relatively minor harbor improvements,because they are necessary to operation of the Superferry, increase the risk of such harm). If groups can represent whales simply by claiming to be interested, then we may be right back to a standard as flexible as the “needs of justice” which does little to protect the courts from being drawn into the policy and political debate about the wisdom of the Superferry, as opposed to the more appropriate question of whether DOT was within its authority when it determined that the harbor improvements were categorically exempt.
IV. Procedural Injury and Relaxed Standing in Other Constitutional Cases
The novel portion of the opinion is the formal recognition by the court of “procedural injury” and “procedural standing.” Slip op. at 47-54. That doctrine drops the standing bar even lower when a person has been “afforded a procedural right” to protect his interests, and has suffered some “procedural wrong.” Slip op. at 51. Essentially, what the court held is that people can have a legitimate “interest” in government-created requirements such as the requirement to prepare an EA in certain circumstances. Slip op. at 49 n.32. Until the Superferry decision, this doctrine had garnered the support of a majority of the court’s sitting justices, but never in a single case. Slip op. at 47 & n.29.
The formal acceptance of the doctrine may impact environmental cases, but as noted above, that barn door was already fairly wide open so it is doubtful that the addition of procedural standing will result in even more environmental litigation. Where the ruling could have impact is in the court’s treatment of claims involving other constitutional rights, since the decision about “procedural injury” is essentially a recognition that peoplehave a concrete interest in having government follow its own rules.
Since the court has held that the lax standing requirementsinenvironmental cases is derived from the Hawaii Constitution,then might it also follow that the courts should be more willing to entertain cases involving other constitutionally recognized rights and “interests?” For example, the state constitution reserves special status for the right to “acquire and possess” property:
All persons are free by nature and are equal in their inherent and inalienable rights. Among these rights are the enjoyment of life, liberty and pursuit of happiness, and the acquiring and possessing of property. These rights cannot endure unless the people recognize their corresponding obligations and responsibilities.
Haw. Const. art. I, § 2. If the “needs of justice” covers environmental concerns, the court should be at least asaccommodating in its standing analysis in cases involving these explicit interests as it is in environmentalcases.