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's Kahului Harbor necessary to the Superferry's Maui operation were within the categorical administrative exemptions to the 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 and political questions, courts are supposed to limit themselves to adjudicating actual disputes and remedying actual injuries. One tool courts use to insulate themselves from political questions is the doctrine of "standing."
"Standing is concerned with whether the parties have the right to bring suit.” Sierra Club v. Hawaii Tourism Auth., 100 Haw. 242, 250, 59 P.3d 877, 885 (2002). The standing requirement, according to the Hawaii Supreme Court, is a "prudential rule of judicial self-governance," meaning that the court is supposed to police itself and enforce limitations to distinguish which cases it can adjudicate, and which cases are too abstract or too political to be heard. It is a preliminary requirement in every lawsuit, requiring the plaintiff prove it has suffered enough harm to insure the litigation is attempting to remedy an injury, and is not a being used as a vehicle for judicial validation of the plaintiff's political value preferences:
We abhor the use of courtrooms as political forums to vindicate individual value preferences, [and the] proper forum for the vindication of value preferences is the legislature . . . not the judiciary.
Hawaii’s Thousand Friends v. Anderson, 70 Haw. 276, 283, 768 P.2d 1293, 1299 (1989). Requiring that a plaintiff demonstrate injury is designed to protect the courts from being used as forums for political or philosophical debate by limiting access to parties who are injured and who have actual disputes, because judges, unlike legislators, are not supposed to apply their own political and value preferences to a case. These type of determinations are supposed to be made in the democratic branches -- the Legislature and the Executive -- which, unlike courts, are directly responsive to the electorate.
Thus, it is disappointing to witness much of the newspaper and other commentary regarding the Superferry directed at what the courts "should" do as a policy matter, because the commentator assumes the result in litigation is driven by whether judges believe the Superferry is a good thing or not. Courts retain their legitimacy as neutral arbiters only if they do not needlessly thrust themselves into political and policy questions beyond the scope of their expertise, and which are better left to the political branches.
When a court strays from these self-imposed "rules of self-governance," it rightly exposes itself to criticism that the result is political, not legal.
II. Superferry EA Standing
After the State DOT determined that the improvements to the state's Kahului Harbor necessary for the Superferry's Maui operations fell within a categorical exemption to the preparation of an Environmental Assessment under the Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343, DOT was sued by the Sierra Club, Maui Tomorrow, and the Kahului 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 these plaintiffs were not injured by DOT's categorical exemption determination, and therefore did not have standing. In other words, the circuit court implicitly determined these plaintiffs were using a lawsuit to validate their own policy preferences (Superferry is bad), not because they had suffered -- or were in danger of suffering -- any real harm caused by the exemption determination.
The Hawaii Supreme Court reversed, holding that the plaintiffs had standing to challenge DOT's categorical exemption of the harbor improvements. The court held:
[Plaintiffs] have established all that can be asked of them in a HEPA case -- they have: (1) shown both procedural and threatened injury in that the lack of an EA increases the risk of harm to their concrete interests; (2) established that they have concrete interests based on a geographical nexus to the Kahului Harbor area; and (3) articulated clear chains of causation explaining the manner in which the unmitigated activity may have an effect on their interests -- demonstrating that the threat to their interests is at least nontrivial. If these Appellants do not have standing to bring this claim, it is hard to imagine who, if anyone, would.
Slip op. at 76.
III. Barn Doors and Environmental Standing
Did the Superferry decision, as some have opined, open the floodgates to environmental lawsuits? Not really, since that door was thrown 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 rigorous standing requirement[s]" than run-of-the-mill civil disputes. The court's rationale for reducing standing in environmental cases to what is essentially a pleading exercise is based in its reading of the Hawaii 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).
Slip op. 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 standing doctrine'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 "any person may enforce" language in Article XI, the people gave state courts quasi-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 Sierra Club lacked standing to complain that the state tourism bureau had not undertaken an EIS before it spent public money on promoting Hawaii tourism. 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 of alien species and protection of whales, it doesn'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-Maui hunters 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 people have a concrete interest in having government follow its own rules.
Since the court has held that the lax standing requirements in environmental 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 as accommodating in its standing analysis in cases involving these explicit interests as it is in environmental cases.
