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For years, California was the poster child for environmental hype. That distinction now belongs to Hawaii. About 2,400 miles from the West Coast and with no oil fields of its own, the Aloha State relies on imports to fuel its tourism industry, operate its network and make daily life possible.
But Hawaii's oil dependence hasn't stopped it from waging an all-out court war against energy companies. Hawaii Attorney General Anne Lopez, along with Honolulu and Maui, are suing the oil and gas industry for billions of dollars based on alleged climate-related damages. These sweeping cases reveal the political corruption infecting Hawaii's legal system and call for a federal investigation and prevention of Hawaii's energy industry shakedown.
First, the lawsuits conveniently exclude the state's only refiner and major supplier of gasoline and jet fuel, Par Pacific and its subsidiary Par Hawaii. According to campaign finance documents, its executives have donated to the state's Democratic leaders, including Gov. Josh Green. But according to the theory of the Hawaii case, the state's energy refineries, not to mention its energy users, produce the emissions that most directly harm the islands' environment.
Second, courts in other solidly Democratic jurisdictions have repeatedly rejected identical cases, citing long-standing precedent that places the federal government in charge of setting interstate and international emissions standards.
CLIMATE JUSTICE GROUP HAS DEEP TIES WITH JUDGES AND EXPERTS INVOLVED IN LITIGATION AMID IMPARTIALITY DEMANDS
The fight against climate change has moved to state courts in places like Hawaii, where they fight energy companies in court cases. (Barbara Alper/Getty Images)
But prominent Aloha State judges, including those involved in the Honolulu case, have collaborated with the Environmental Law Institute (ELI) and its Climate Judicial Project (CJP), which calls into question the impartiality of the state judiciary. The organizations share staff and donors with Sher Edling LLP, the law firm representing Honolulu and many other local governments suing energy companies over climate change.
The close relationship between ELI and climate lawyers did not prevent three Hawaii Supreme Court justices from participating in events sponsored by ELI-CLP. One of them, Chief Justice Mark Recktenwald, also directed his clerk to help an expert working on climate cases understand the Daubert standard “used by judges to evaluate scientific expert testimony” and previously provided “helpful” guidance to Kerry Emmanuel, an expert hired by climate plaintiffs in another case against the energy industry.
Despite these behind-the-scenes efforts, Chief Justice Recktenwald authored the opinion of the Hawaii Supreme Court in Honolulu. case, which was a major victory for climate plaintiffs. One of the chief justice's colleagues showed his bias even more openly by agreeing that he suggested that the U.S. Supreme Court should reach the same result regardless of the text of the federal law because the high court “could use a little Aloha.”
THE SUPREME COURT MUST FREEZE THE CLIMATE EXTORTION OF OUR ENERGY INDUSTRY
Third, after the Hawaii Supreme Court refused to dismiss the Honolulu case, the lower state court it presides over has allowed plaintiffs' attorneys to use the discovery to conduct a fishing expedition in service of a broader anti-energy legal campaign. Hawaii courts should have stayed their proceedings while the fundamental legal question underlying the roughly 30 identical lawsuits—whether state tort suits against energy companies over global climate change belong in federal or state court—is currently being considered by the U.S. Supreme Court in Suncor Energy v. Boulder County.
Outside of Hawaii, judges in California, New Jersey and elsewhere have suspended climate litigation for an obvious reason. The Supreme Court receives thousands of petitions each year, but agrees to hear only a small fraction of them. In the extremely rare case that a case reaches the highest court in the country, there is a distinct possibility that the justices will set a new standard or eliminate entire categories of claims entirely.
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Honolulu is effectively racing to extract maximum production documents and hundreds of sworn executive testimony before a ruling potentially reduces or eliminates the legal basis for all of these lawsuits. A court-appointed special officer has ordered energy companies to review their records of 75 years of documents related to the production and sale of energy products around the world.
Apart from the enormous cost that this paper chase would entail for companies, the documents will not demonstrate deception to the consumer. That requires the company to hide information that the public did not yet know. Consumers have been aware of global warming for decades, but have chosen to use fossil fuels at the same levels as 50 years ago.
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More information about climate change may be helpful, but it's not compelling enough to get most of the world to stop demanding the energy they need to do the things they want, like cool their homes, power their devices, and maybe even vacation in Hawaii. That's assuming the Aloha State hasn't turned to the travel industry to aid and abet oil and gas producers by then.
Michael Toth is the director of research at the Civitas Institute.
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