What Does Right to Clean Environment Mean?

Phil Spalding III/The Nature Conservancy

This story has been updated in multiple locations to clarify that the court ruling applies to state land use law, not county zoning regulations. The error was identified by University of Hawaii law professor David Callies and Native Hawaiian Legal Corporation attorney David Kimo Frankel. You can read the original, uncorrected version of the story and their e-mails to Civil Beat at the bottom of this page.

Are land use rules just environmental laws by another name? The Hawaii Supreme Court says yes.

When it overturned an appeals court ruling last month, the Supreme Court cleared the way for private citizens and community groups to file lawsuits to enforce the state land use law as part of a personal constitutional right to a clean environment.

The decision gives private citizens across the state another avenue to air their concerns about projects in their neighborhoods and could change the way land is used in Hawaii. But some worry the ruling could cause havoc and might make it that much harder to develop.

The Hawaii Constitution outlines a number of rights that all people in the state enjoy. The right to "life, liberty and the pursuit of happiness" mirrors the Declaration of Independence. The local rights to due process, privacy and to bear arms are derived from similar promises made in the U.S. Constitution's Bill of Rights.

But Hawaii's bedrock legal document guarantees some additional powers unique to the islands. The section on traditional and customary rights is one such example. The state also promises all who live here the right to a "clean and healthful environment" in Article XI, Section 9.

The right can be enforced by any person against any party, public or private, the Constitution promises. That might sound pretty clear, but it's not.

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