In what has been described as a ‘world first’ in constitutional climate litigation, youth plaintiffs from Hawai‘i have secured a historic Settlement Agreement that underscores both the realities of climate change and the State’s responsibility to address it. Navahine v Hawai‘i stands as an important reminder of the power of transformative litigation, and touches on the courts’ proper role in constitutional adjudication.

The complaint

Article XI of the Hawaiian Constitution outlines the State’s obligation to preserve and protect Hawai‘i’s natural beauty and natural resources (section 1), as well as the individual’s right to a clean and healthful environment (section 9). In Navahine, the plaintiffs were young people from Hawai‘i who alleged that they were being “seriously injured” as a result of the State establishing, maintaining, and operating a State transportation system [1]. The complaint notes that this transport system is a ‘major and increasing contributor’ to the pollution that Hawai‘i produces [4]. Rather than mitigating and reducing its emissions, the plaintiffs alleged, the State was funding projects that were actively increasing its use of fossil fuels [5]. The plaintiffs asked the Court to provide declaratory relief giving the State ‘clear directions on their constitutional obligations’, as well as any necessary injunctive relief [7].

The Settlement Agreement

On 20 June 2024, the parties announced that they had reached a Court-approved Settlement Agreement.

The Court begins by setting out the parties’ key rights and obligations (pages 3-4). First, it affirms that Article XI, section 9 ‘subsumes a right to a life-sustaining climate system’. Second, it reiterates that as trustee of Hawai‘i’s natural beauty the State must take an active role in preserving the environment and may not ‘passively allow it to fall into ruin’ (page 4) (see Ching). Third, it notes that the State is under a statutory obligation to expand its strategies and mechanisms to reduce greenhouse gas emissions.

The terms of the Settlement Agreement are designed to ensure that the government reaches its Zero Emissions Target by 2045. Key terms include:

• The State will establish a comprehensive Greenhouse Gases Reduction Plan (‘the Plan’) to reduce emissions from the transportation system, including for ground, air, and marine transportation. The Plan will have reduction targets for 2030, 2035, and 2040 (page 5);
• The plaintiffs and the public will have continued opportunities to review and comment on the Plan, and will be provided with annual updates on the progress of its implementation (page 5);
• The State will create a unit headed by a ‘Climate Change Mitigation and Culture Manager’, who will be expressly charged with addressing climate change mitigation (page 8);
• A volunteer youth council will be established that will advise on the State’s mitigation and adaptation commitments on a quarterly basis (page 8).

In addition, the Agreement outlines the minimum steps required in order to achieve the State’s goals, such as ensuring that private stakeholders support and adopt zero emissions vehicles (page 6).

Commentary

As has been noted by a number of commentators, the Navahine litigation is groundbreaking in multiple respects. It underscores not only the transformative power of litigation, but the ability of anyone, regardless of age, to effect change. In addition, it serves as an important reminder about the realities of climate change, and, as Hawaiian Governor Josh Green put it, the ‘government’s kuleana (responsibility) to lead the way on bold and broad climate action’.

Yet the litigation also indirectly touches on an important issue – the courts’ proper role in constitutional adjudication. In the words of the Joint Committee on Human Rights, there is a broad concern that constitutional ‘incorporation of economic, social and cultural rights would lead to a constitutionally inappropriate, and practically unhelpful, engagement of the courts in resource allocation’ [55]. In this case the Court largely sidesteps that controversy by merely approving the parties’ mutually agreed terms, but it does not do so entirely. Its conclusion that the State is constitutionally required to take active steps to preserve the natural beauty of Hawai‘i suggests that, in certain circumstances, the courts may intervene to ensure that the State does so. It will be interesting to see if this issue will arise in future climate litigation and, if so, how the courts will approach it.