Sunday, June 23, 2024
Hawai'i Free Press

Current Articles | Archives

Wednesday, May 15, 2024
Hawaii Supreme Court says goodbye to federalism
By Selected News Articles @ 5:12 PM :: 1929 Views :: Environment, Judiciary

Hawaii Supreme Court says goodbye to federalism

by J.W. Verret, Washington Examiner, May 14, 2024

In Sunoco v. Honolulu, poised for consideration by the U.S. Supreme Court, Hawaii’s decision to allow a climate change lawsuit to proceed against major oil companies represents a critical juncture for American jurisprudence and the principle of federalism at its core.

The litigation model adopted by Hawaii, characterized by suing oil companies under broad claims about their contributions to climate change, demands a national spotlight for its potential to disrupt the constitutional equilibrium between state innovation and federal authority.

Former Supreme Court Justice Louis Brandeis wrote in an opinion about the genius of federalism that “a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

For example, Colorado innovated in legalization of marijuana within its borders but left other states to determine their own appropriate regulation. Delaware innovates in the creation of business entities, and other states respect that the contractual arrangement will be governed by Delaware law. Colorado and Delaware innovated within their borders without overstepping into the jurisdiction of their fellow states or the federal government.

This model of the states as laboratories for innovation is very different from this pattern of states as laboratories for climate lawsuit abuse that has been growing in a few rogue states. The latter vision, embraced by the Hawaii Supreme Court, is a macabre twist on the state laboratory in which states race to the bottom to grab power over other states.

Such litigation not only seeks to adjudicate globally significant issues at the state level but also aspires to impose the regulatory preferences of a few states on the entire nation — and, indeed, the world. This stands in stark contrast to the deliberate division of powers that has historically allowed states to serve as crucibles for policy innovation without infringing upon the collective rights and responsibilities of the United States as a singular entity.

Federalism is a core principle in the Constitution, and in the fabric of America the states were the sovereign entities that created the federal government. In doing so they made a mutual compact embodied in the Constitution and the Bill of Rights.

States don’t get the right to override parts of this compact when they see fit. Yet the Supreme Court of Hawaii has shown a consistent pattern of doing just that in a series of opinions.

In one opinion, the state Supreme Court simply declined to follow the federal Supreme Court precedent on the Second Amendment, declaring that instead the “spirit of aloha” governed Hawaii’s interpretation of the federal Constitution. The “spirit of aloha” was deemed inconsistent with carrying a weapon for self-defense. You can’t make this stuff up.

In the Sunoco case, this court in Hawaii has determined that the spirit of aloha now allows Hawaii courts to serve as de facto national (and indeed global) environmental regulators in place of Congress, the Environmental Protection Agency, and other states and countries.

Surely Congress has preempted this power grab with the plethora of environmental laws on the books. Between that, and the split between the Second Circuit and the Hawaii Supreme Court, there is more than enough to catch the Supreme Court’s attention so it grants the petition for review. The Second Circuit has thrown cold water on the idea that state tort law could be used to regulate climate emissions and held that “such a sprawling case is simply beyond the limits of state law.”

Hawaii’s approach sets a dangerous precedent for the fragmentation of our national legal framework. Given the divergence in judicial interpretations between circuits, such as the conflict between the Second Circuit and the Hawaii Supreme Court, the U.S. Supreme Court’s intervention becomes not just warranted but essential.

The amicus briefs filed in this case, including notable contributions from military leaders such as retired Adm. Michael Mullen and retired Gen. Richard Myers, emphasize the national security implications of these legal strategies. Their insights highlight how undermining the nation’s Strategic Petroleum Reserve and compromising our energy independence could jeopardize America’s military readiness and overall security posture.

The resolution of this case holds the potential to define the contours of state versus federal authority in the context of global challenges such as climate change. It prompts a necessary reevaluation of how the U.S. balances the innovative spirit of individual states with the cohesive and unified approach required to tackle issues that transcend state borders and affect the nation as a whole.

As this case advances, it is imperative for the Supreme Court to consider not only the immediate legal questions presented but also the broader implications for the American constitutional order. The court’s decision could very well determine the trajectory of federalism in the 21st century, influencing how the U.S. navigates the complex interplay between state innovation and national unity in facing global challenges.


J.W. Verret is an associate professor of law at George Mason University’s Antonin Scalia Law School.


TEXT "follow HawaiiFreePress" to 40404

Register to Vote


Aloha Pregnancy Care Center


Antonio Gramsci Reading List

A Place for Women in Waipio

Ballotpedia Hawaii

Broken Trust

Build More Hawaiian Homes Working Group

Christian Homeschoolers of Hawaii

Cliff Slater's Second Opinion

DVids Hawaii


Fix Oahu!

Frontline: The Fixers

Genetic Literacy Project

Grassroot Institute

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii ConCon Info

Hawaii Debt Clock

Hawaii Defense Foundation

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federation of Republican Women

Hawaii History Blog

Hawaii Jihadi Trial

Hawaii Legal News

Hawaii Legal Short-Term Rental Alliance

Hawaii Matters

Hawaii Military History

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Shippers Council

Hawaii Together


Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Navy League

Honolulu Traffic

House Minority Blog

Imua TMT

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

July 4 in Hawaii

Land and Power in Hawaii

Lessons in Firearm Education

Lingle Years

Managed Care Matters -- Hawaii

Missile Defense Advocacy

MIS Veterans Hawaii

NAMI Hawaii

National Parents Org Hawaii

NFIB Hawaii News

NRA-ILA Hawaii


OHA Lies

Opt Out Today

Patients Rights Council Hawaii

Practical Policy Institute of Hawaii

Pritchett Cartoons

Pro-GMO Hawaii

Rental by Owner Awareness Assn

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

School Choice in Hawaii

Talking Tax

Tax Foundation of Hawaii

The Real Hanabusa

Time Out Honolulu

Trustee Akina KWO Columns

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii