 Where Hawaii comes together to walk towards a clean, renewable, and just energy future. I am your host, Raya Salter. I'm an energy attorney, clean energy advocate, and community outreach specialist. I'm also the principal attorney of ImaginePower LLC. Today, we're going to discuss how the law in Hawaii and across the country can be used to address issues related to climate change. Now, we know that in order to stop catastrophic climate change, we, as global citizens, must reduce greenhouse gas emissions and also learn how to adapt to changing weather and rising seas. This means that we must make adjustments to business as usual. But how, if at all, can individuals and states take action absent a unified policy to take action? To discuss what legal tools are available to take action on climate change in Hawaii, we are joined in the studio today by Doug Kodega. Doug is a member of the firm Schlack Ido, concentrating his practice in the areas of energy and environmental law with an emphasis on regulatory and administrative proceedings and dispute resolution. Mr. Kodega founded Hawaii's first Climate and Sustainability Law Practice Group in 2007 and frequently publishes and lectures on clean energy, climate change, and environmental law and policy. Doug has written an important article for the Hawaii Law Journal, I believe we have a picture of the cover, called Climate Litigation in Hawaii. And so we are very pleased that he is here with us to discuss it. So welcome to you, Doug. Thank you so much for being here today. Thank you for having me. It's great to be here. Absolutely. So first, Doug, maybe you could just go ahead and tell us a little bit about your background and why you decided to become an energy attorney. Well, briefly, it's probably a combination of academic and professional interests. As an undergraduate and law student, I always focused on energy and environmental law issues. And I've been fortunate to build a law practice here in Hawaii driven by client issues and concerns in those areas. Well, that is fantastic. So I read this article. It is super important and interesting. And, you know, you cover a lot of topics. And I think one of the things that is most important is, you know, I think there's a lot going on with climate change. We've got a lot happening at the national, international level. We've had historic agreements. We have our own presidents seeking to sort of the administration as we understand, seeking to pull out of these agreements. So I think people think, gosh, what can we do? Is there something that we can do? Is there something in the law that will allow us to counter these forces? Is there a way that we can fight climate change? And your article really talks a lot about the different ways the law could be used to do that in Hawaii and across the country. But first, it really kind of talks a little bit about some of the challenges that Hawaii faces as we look forward to climate change. Perhaps you could talk a little bit about what some of those challenges are. Well, certainly. And I think what you're pointing to is very important and relevant, which is the fact that the states have traditionally played an important role in addressing these kinds of issues. And it may be the case that we're entering a phase now, or many, many would suggest we're entering a phase now, where states will continue to play an important role. And I think the purpose of my article, one of the reasons I wrote the article was to draw attention to some of the approaches that may be available to address climate change issues, regardless of what's happening at the federal or national level. These are tools that may be available to us now at this time. And what is it driven by? I mean, it's driven by a confluence of different factors. But I mean, I think what you're getting at are the actual impacts of climate change. Yes, yes, yes. And of course, these are pretty well documented now by a broad range of scientists. Certainly the fact that climate change, there's an anthropogenic or human-caused dimension to climate change from greenhouse gas emissions, but then also there's an emerging consensus around the impacts. In particular, we can look at sea level rise, changes in precipitation patterns, ocean acidification and so forth. These are impacts that are fairly well documented now. And is it fair to say that Hawaii faces some of these threats in a way that may be different on the mainland? Well, there's no doubt as an island state that we will feel impacts somewhat unique to our geographic location. I think that's probably true for many places. It can be said of many places as well. I think the key point here is that as lawyers, as people focused in the law, we may look to others for proof in the science or for science and the scientific experts in particular to provide support. And to the extent that support exists, then we can proceed with these legal claims. Okay, very interesting. So you start out your article talking about two sort of main areas of climate and the substantive legal basis for climate litigation. And you talk about both mitigation and adaptation. So could you explain for folks what that means? Sure. That's the basic distinction that is drawn in addressing climate change issues between reducing the greenhouse gases that cause climate change and then on the other hand, adapting to climate change impacts themselves. So this is a very broad kind of distinction between two basic approaches. So could you talk about where some of the legal basis for claims in these two areas lie? Well, I mean, if by legal basis you're thinking about statute, statutory law, we have major pieces of state legislation addressing both mitigation and adaptation. And for example, if we look over to the mitigation side, we see that Hawaii was among the very first states in the country to pass a Kyoto protocol like CAP on greenhouse gas emissions known as Act 234 in 2007. Oh, interesting. So could you actually go ahead and walk us through a bit more about Hawaii's state climate change law? Sure, sure. So I think there's a range of different statements and laws and it's reflected in the administrative rules as well, as you would expect. But basically, the legislature concluded, again, back in 2007, that the science again supported these conclusions that there were climate change impacts that could adversely impact Hawaii's natural environment and Hawaii's economy, in particular tourism. So as a result, the state legislature took, I think, fairly bold action in establishing a CAP on greenhouse gas emissions. What does this mean? This means that as a state, we have to limit our total greenhouse gas emissions to a level that is at or below what they were in 1990. That is interesting. So are there also actions on the adaptation side or is there a state law on the adaptation side? Indeed. There isn't. There's a range of different laws or acts that we can look to on the adaptation side. For example, the state has directed that a report be prepared on sea level rise. Sea level rise, I think many people are aware of this phenomenon in Hawaii and around the world. And the legislature actually recognized this as well based on the science as being an incredibly important issue to address and passed a law mandating at the minimum the preparation of a high level report, high level study on the impacts of sea level rise. Many other initiatives as well. Now, in your article, you talk about ways that citizens and others may be able to use this Hawaii state laws to bring suits. Could you tell us a little bit about that? And perhaps you could talk about one of the cases that you mentioned in your article. Sure. So this is a rather straightforward application of a well-established federal and state legal regime, which is based off the Federal Clean Air Act. And of course, we have our Hawaii state version of the same law. And this essentially, you know, we talked about mitigation and capping these greenhouse gas emissions. The statute allows for citizens to bring suits if there is a violation of the emissions limit. So basically, what that means is that if you have a large emitter of greenhouse gas pollutants, possibly a power plant or some other source, and you are able to prove that the emissions have exceeded the limit, then we don't have to wait for a government agency to take an enforcement action. A citizen can bring what's called a citizen suit. That is really interesting. Has there been a citizen suit so far? Well, certainly not that I'm aware of on this issue. And in fact, that's why I'm saying it's rather straightforward. This federal statute's been in place for decades. And of course, it's had the same citizen suit provision. So this is basically, to my mind, it's an example of how climate change really is going to be addressed the same way we've grappled with other environmental issues, essentially. Interesting. With some notable exceptions. Well, go ahead and explain a little bit more about what you mean about that. Okay. Well, the notable exception in this case, most likely on the mitigation side, would be what's called atmospheric trust litigation. Yeah, you talk about that a lot in your article. I think it would be super helpful if you could just first go ahead and say, what is atmospheric trust? What is atmospheric trust litigation? What is atmospheric trust? Yes, it's not immediately easy to grasp and understand. And as an example, it shows you how the law can be adaptive itself to address. In other words, novel legal theories will arise in response to novel environmental issues. The Clean Air Act, citizen suit provision has been established for decades. On the other hand, atmospheric trust litigation is not yet well established at all. To briefly summarize what it is attempting to do is it's attempting to protect the atmosphere the same way that the courts protect other public trust resources. And the simplest example in Hawaii would be the shoreline area, the beach, as a public trust resource, or maybe freshwater resources as well. Okay, so if you could, I understand that there are some suits going forward in this area. How long has this been happening? I know you're saying it's sort of relatively novel. And why don't you dig into one of the cases that's happening and help us understand. Sure, sure. So again, the notion is that like the ocean, like the shoreline area, or like freshwater resources, they are held in trust by the government for all citizens. So we're trying to apply that notion would be applied as well to the air, to our atmosphere. And the claim would be that the government has failed to take sufficiently protective measures of the atmosphere. So that has given rise to litigation to lawsuits filed in federal district courts across the United States. And thus far, most of them have met with little or no success, with one exception, the Juliana case out of Oregon, which is actually moving forward. Why don't you tell us a little bit about this Juliana case? Maybe you could tell us a little bit, maybe a little bit of what the facts are, and how it came forward, and then what its significance is. So I believe it's considered one of the leading atmospheric trust litigation cases in the United States. And again, this is a very novel theory. It's been not well received by most courts. Most courts have concluded the Clean Air Act itself displaces these claims, or had other issues with having it go forward. But in the Juliana case, it's brought, first interestingly, it's brought by a group of youth plaintiffs. So these are younger people, I believe, high school, elementary school, maybe college age youth, who are claiming that the government's not taking sufficiently protective measures to protect the atmosphere as a public trust resource. Wow, that is amazing that young people came forward to do that. So go ahead, tell us a little bit how this has been sort of snaking forward. So the plaintiff is a nonprofit organization, Our Children's Trust, which represents the youth, or is comprised of the youth plaintiffs. They filed a direct action in the U.S. Federal District Court in Oregon. That action was opposed by the government, relevant government agencies, and other intervener parties. The opposition essentially argued that the claim that the atmosphere is a public trust resource has already been addressed by the Federal Clean Air Act, and so therefore it's been dismissed. We are going to take a break, and when we come back, we're going to learn more about this Juliana case, where the kids have come forward to say that we need to do more to protect our atmosphere. We'll be right back with more from Power Up Hawaii. Hello, and welcome back to Power Up Hawaii, where Hawaii comes together to walk towards a clean, renewable, and just energy future. We're here with Doug Kodega, an attorney with Schlag Edo here in Honolulu, and we're talking about an interesting article that he wrote on climate change litigation in Hawaii for the Hawaii Bar Journal. Thank you once again, Doug. And we were just talking about atmospheric trust litigation, which is sounding like an interesting, evolving area of law, and a particular case, the Juliana case, where it sounds like some youths, some children, some elementary school kids, got together with the non-profit to come forward and say, state of, sorry, which state we're talking about, state of Oregon, you are not doing enough to protect our atmosphere. And so Doug was just talking about the state response and where the case is now. So please, Doug, go ahead and do that. Sure, sure. So, yeah, so this youth group has advanced the novel legal theory that the atmosphere is a public trust resource. And maybe I should say just a quick word about the public trust. No, please. That idea is that it comes from Roman law and was actually validated as well by the English common law system and carried its way into the U.S. constitutional, and particularly the Hawaii state constitution, which has very strong public trust related provisions. The idea is that certain resources are to be held in trust by the public. They are held in trust by the public, and therefore should be protected accordingly. So this novel theory is that not only are freshwater resources and ocean coastal resources and similar resources held in trust for the public, but the atmosphere is as well. They filed their lawsuit claiming that essentially the government had breached, as a trustee, had breached its obligations. This was opposed by filings by the state government agencies and other interested parties on the grounds that it's not a viable legal theory. In particular, it was claimed that the Federal Clean Air Act displaced this whole atmosphere trust approach. So I guess, how would that work, meaning that the federal government has already, you know, there's already authority on the air and that, you know, the sort of side claim about trust of the atmosphere is subsumed or how did that go? Yeah. Well, it's essentially, it's almost a type of preemption argument that the federal, the government, in a very basic sense, the government has spoken by adopting legislation that addresses the same issue. In other words, since mass VEPA, the landmark U.S. Supreme Court decision, which regulates greenhouse gas emissions or authorizes the regulation of greenhouse gas emissions under the Federal Clean Air Act, and that is done, of course, through the Federal Clean Air Act. And so the basic argument, as I understand it, is we've occupied the field. There's no need for a novel theory to proceed on. Yet this case is all is not lost for these kids. So what's going on? One step at a time. The most, well, there's been several, a few recent rulings I'm aware of, which one is which that I believe the Oregon Federal District Court rejected the motion to dismiss brought by the defendant parties. In other words, they said, this is not a viable claim. And I believe the court dismissed that and essentially rejected their claim that it was not viable. So that allows it to go forward. More recently, I believe within the last week or so, the same defendant said, why don't we have the Ninth Circuit Court of Appeal look at this before we go to trial? They are headed for trial. And I believe that the same, the Federal District Court in Oregon again rejected that argument that this should be taken up by the Ninth Circuit Court of Appeals immediately, in other words before trial. So they're headed for trial. That is incredible. So trial means then that these issues are going to be, these issues are going to come out and be discussed on the merits. Is that correct? It seems to be the case, yes. Do we have any idea of what the timetable is on that? I believe they're setting up for trial later this year. Wow. Well, that will be amazing, an interesting one to watch. I agree. Well, that is really interesting. So, wow. So we've got atmospheric trust or the idea that the air is in the atmosphere should be protected in the public trust, which is interesting. What are some other ways that in particular in the state of Hawaii where these issues can be addressed? You talked about PUC proceedings, you talked about our renewable portfolio standards. What are some of the ways in the state that these issues may be able to be addressed? Sure, sure. So, you know, the atmospheric trust litigation, like I said, is novel. And so we don't know exactly where that is going to go. We're all watching it with interest, of course. Wow, that's just fascinating. On the mitigation side, we talked earlier about mitigation and adaptation, continuing sort of on the mitigation side. One of the main sources of greenhouse gas emissions is electric power production, particularly from power plants in Hawaii that use fossil fuels. So whether it be coal or fuel oil. And so as I know you are well aware, we have a number of landmark proceedings or key proceedings, I should say, some of them turn out to be landmark proceedings addressing clean energy law and policy. So these are these are administrative law proceedings, sometimes quasi-judicial proceedings, sometimes investigatory proceedings, which are taking up the issue of how do we transition from fossil fuel use to non-fossil or renewable resources? I mean, this is just completely off the top of my head. If for some reason we, and I'll say we as a community or we as the folks in the energy community fail to reduce greenhouse gas emissions, then I believe would there then be a place for a citizen suit or other type of suit to be brought? And who would it be brought against? If so. Well, I mean the citizen suit provision, yeah, the citizen suit provision, just to clarify, the citizen suit provision is, it's in the Clean Air Act, right? So it's a part of the Federal Clean Air Act. So it's tied to the enforcement. Actually, there's a several things, a few things that can happen with that. Please, break it down. You can enforce the emissions limit if there is a Title V Clean Air permit that a facility holds, and there's an emissions limit tied to greenhouse gas emissions, and that emissions limit is not met, as I mentioned earlier, then citizens can bring a suit to enforce. Also, if there's other permit conditions that aren't met, citizen suit may be possible as well. And then finally, if the Department of Health fails to take action as well. I understand. But that's all under this. On the public utilities commission side, I think we're really talking about perhaps appellate. Is that what you were thinking? Maybe if there's... Ah, yeah, no, please, please tell me. If there's, you know, is there, I guess if for some reason we fail to reduce greenhouse gas emissions at the state level, is there a remedy, or is there an action that could be... I see, I see. That's clumsily trying to get to the question. Yeah, yeah. So the, as you are well aware, the public utilities commission proceedings do result in binding decisions and orders. They're designed, of course, to regulate publicly regulated utilities. And so those decisions and orders are not, I would say, are not directly focused on reducing greenhouse gas emissions. I will say, however, that I have noticed references to greenhouse gases increasing in frequency. For example, just the commission recently issued an order concerning a proposal by the utility to purchase a fossil fuel power plant. And one of the issues in the proceeding was how much, what's the purchase price? And the commission noted that the consultant's analysis of that failed, in its view, I believe, failed to properly consider greenhouse gas emissions. In other words, that plant may itself require upgrades to comply with Act 234. Now more dramatically, or perhaps more to the point, in another PUC docket involving the extension of a power purchase agreement for a coal-fired power plant, I believe the commission did conclude in that docket that the extension of the PPA was not warranted for a whole range of reasons. And one of them actually was related, again, to greenhouse gas emissions. Very interesting. So since we have a few more minutes, let's talk about another section of your article that I thought was really important. And that was sea level rise and what type of liability that may create for, not only developers but developers, other folks who are making plans for land development. Could you talk a little bit about that? Sure. So this is another emerging area of the law. And it's actually a little bit like atmospheric trust litigation in some ways because there are some novel theories that are being advanced and developed. And so we can't say with certainty sitting here, now that these are concrete actionable theories, and I tried to make that point in my article that they're on the horizons of potential advances. And we should be aware of them. But one of them is definitely relates to coastal development in Hawaii. And the basic notion is that there may be a tort claim against local government or state government agencies that fail to properly, that approve coastal development without properly considering sea level rise. So this could create liability for the state? Indeed. Potentially. Again, these are more novel theories. Of course, the state has its own well-established protections against such potential, such types of claims. So it remains to be seen. Not only the state as well, I think developers also should be aware when they're developing coastal properties that they have a duty to take care of. They're sure that they understand the impacts of sea level rise as it may affect their project. That would mean getting in early and retaining consultants and others to advise them on what are the potential risks of developing in a coastal area that could be impacted by sea level rise. We only have just a minute left. But this seems like it could be extremely important. There's so much development happening on the coastlines here. Do you think that that's happened? Do you think that there is awareness amongst the development community that this is an issue that they need to be? Yes, I do. We see some encouraging signs. We see web-based tools that allow developers to understand the impacts of sea level rise. We see the University of Hawaii pretty heavily engaged in trying to publicize and promote public awareness about these issues. We see a series of publications addressing these issues. So I think this issue is coming to the fore. All right. Well, Doug, thank you so much for your work and for coming to talk with us about this, what I think is an extremely important article. And thank you so much for joining us again for Power Up Hawaii. We will see you next week. Aloha and Mahalo.