Real Estate & Property Law

What Advantage Do Environmental Plaintiffs Have In The Hawaii Supreme Court? According To UH Lawprof, A 90% Win Rate

By Robert Thomas (inversecondemnation.com)

At yesterday's debate (video archived here) sponsored by Honolulu Civil Beat, "Knowing the Past, Shaping the Future" about the problems that have arisen in Hawaii in the time since the publication of the book The Price of Paradise 20 years ago, U. Hawaii lawprof David Callies revealed a stunning statistic. He noted that the Hawaii Supreme Court "has managed to find in favor of Sierra Club, Friends of the Earth, Earthjustice ... 90% of the time, 70% of those decisions overturning the [Hawaii] Intermediate Court of Appeals."

Whoa.

Callies began by questioning the conclusion reached by most of the book's essayists that Hawaii is not regulated enough -- and that even more government is called for:

I don't think that's the problem, folks. The notion that the problems that have arisen over the past 35 or 40 years -- or the last 20 years since The Price of Paradise, two books were published -- can be fixed by more goverment and more regulation, is deeply flawed. Why would we continue to do the same thing? Look to the same places. Ask for more regulation, when it really hasn't worked all that well before.

See video at 44:20 mark. Hawaii land is perhaps the most heavily regulated land in the country, and Professor Callies noted that "except for Kapolei, which has been planned for a second city for as long as I have had connection with these islands, which goes back to 1970 ... central Oahu -- the plan was to grow around around Mililani, and that's what's happening; East Honolulu, Hawaii Kai -- that's been happening; the primary urban core in Honolulu -- that's been happening," there isn't much difference in how land was planned to be used, and how it is actually used in a place that sustains the population that we do. He continued:

The system that was put into place a number of years ago -- if regulation is what you want -- has worked pretty well in keeping development within those bounds ... but if in fact we find that there are things wrong over the last 25 or 30 years, as all of this government increasing regulation, and [Hawaii] Supreme Court decisions -- with deepest respect for the court as an institution -- has managed to find in favor of Sierra Club, Friends of the Earth, Earthjustice (I'm probably leaving out some) 90% of the time, 70% of those decisions overturning the [Hawaii] Intermediate Court of Appeals -- and the national press goes bananas when the U.S. Supreme Court is regarded as being pro-business because it rules in their favor in the high 50% of the time -- what is that telling you ... what is that telling you? They are fantastically well-lawyered. They are some of the best lawyers in town. I know, in one way or another, I had most of them in class. They are very, very good, and did extremely well. But ninety percent of the time, government and the private sector are wrong? Give me a break.

See video at 48:00 mark. The entire hour and a half video is worth watching if you are interested in the thoughts of academics on where we might be headed (or at least what the issues are).

Full post as published by inversecondemnation on March 01, 2011 (boomark / email).