What if the governor could step into a dispute over a controversial project like, say, the Hawaii Superferry and effectively sidestep the Hawaii Supreme Court’s decision and allow the project to move forward?
That’s what some legal experts say could happen now under a recently passed law originally designed to mitigate consequences of a U.S. Supreme Court decision on government employee unions.
Instead of helping the unions, the measure could undermine Hawaii Supreme Court decisions dealing with issues like the environment and Native Hawaiian cultural resources, say lawyers who work on such cases.
Act 56 changes the way state agencies can adopt administrative rules by creating a new class of emergency rules. Previously, agencies could adopt emergency rules only if there was an imminent threat to the public health or safety. Now, in some cases, agencies can adopt emergency rules to do things like stabilize an industry if a court decision disrupted that industry.
Some, including a former Hawaii Supreme Court justice, say the new law merely allows the administrative agencies to continue to function if a court decision disrupted their operations.
“On the surface, I don’t see a nefarious agenda,” said Steven Levinson, who served on the Hawaii Supreme Court from 1992 to 2008.
But others say the law could be used to sidestep major court decisions that delay controversial projects because of government agency missteps. These include, for example, an agency’s failure to follow administrative rules when granting permits.
Ron Levin, an administrative law professor at Washington University in St. Louis, said it’s “totally extravagant” to expand emergency rulemaking authority so broadly.
Levin said it’s possible the executive could use the expanded emergency power to skirt court decisions.
“It’s a valid concern,” he said.
Act 56 was drafted in response to a federal case involving labor law.
The tenet that the Legislature makes laws and the executive puts them into effect seems pretty straightforward. How agencies actually do this is more complicated.
Some of this work is relatively simple: Agencies generally have the power to adopt internal policies and procedures to guide staff, for instance.
But agencies also pass measures that apply to the general public; these are called administrative rules. Rules carry the force of law, and, when agencies make rules, they’re acting much like legislatures – except the quasi-legislators are appointed board members, not elected officials.
Given the force and importance of rules — and the fact that the people making rules generally can’t be voted out of office — the Hawaii Administrative Procedure Act delineates a process agencies must follow when adopting the measures. For example, under HAPA, when making rules, agencies must provide, at a minimum, public notice and an opportunity for the public to be heard at a public meeting.
It is an often arduous process that makes sure the public has a meaningful chance to weigh in.
Although Hawaii’s Act 56 still requires a public notice and public hearing, critics are concerned emergency rulemaking will short-cut the normal deliberative process.
While the Hawaii Legislature was in session earlier this year, the U.S. Supreme Court was hearing arguments in Janus v. American Federation of State, County, and Municipal Employees. At issue was whether the court would make government worker union dues voluntary; a ruling against the union threatened to weaken labor organizations representing tens of thousands of workers in Hawaii.
State Rep. Aaron Johanson said he sponsored the bill for Act 56 to give state agencies comprehensive options to address fallout from Janus, even if the Legislature couldn’t immediately amend laws in response to the decision. The bill had the support of organizations like the union that represents University of Hawaii faculty.
“What we tried to do with the bill was to allow the state to be nimble,” Johanson said.
Johanson sponsored a different bill focused on changing the state’s collective bargaining law to address Janus. That bill didn’t have provisions letting agencies create emergency rules to bail out industries, but that bill died. The act that passed eventually was amended to delete references to Janus.
Among the critics of the new law is David Kimo Frankel, who has worked on numerous high profile Native Hawaiian rights cases. One such case led the Hawaii Supreme Court to find that the State Historic Preservation Division violated its rules protecting burial sites when it approved the Honolulu rail project without requiring an archaeological survey.
The decision led the City and County of Honolulu to stop rail construction for almost a year while it conducted the survey, which led to the discovery of burial remains. Only after the city got a new permit was it able to resume construction.
The new law could allow an agency to “wave a magic wand” and effectively undo such court decisions through emergency rulemaking, Frankel said.
Frankel said there’s enough ambiguity in the law that it could prove harmless, depending on how it’s interpreted, but he cautioned the law could have “significant adverse consequences to those of us who litigate in the public interest.”
“It looks fairly innocuous. But it could be an arsenic-laced cookie.” — Honolulu attorney Robert Thomas
Marti Townsend, an attorney who serves as the Hawaii Sierra Club’s executive director, agrees.
In written testimony to the Senate Judiciary Committee, Townsend said the bill “would undermine the basic rule of law that Hawaiʻi has long operated under.”
In an interview, Townsend said the Sierra Club supports unions, but not the new law.
“This is such a severely fundamental change to the way we’ve operated that it really deserves a lot more vetting,” she said.
Levinson, the former Hawaii Supreme Court justice, questioned whether the new law will have much effect beyond making it easier for executive agencies to keep functioning if a court upends rules they need to do their jobs.
The law still requires agencies to provide a 30-day public notice and hold a hearing where the public can weigh in before the agency adopts rules, Levinson said.
There’s also a practical argument: If agencies can adopt administrative rules quickly to avoid delaying controversial projects that get tied up because of court fights over arcane regulations, that’s not necessarily a bad thing, said David Callies, an authority on Hawaii’s land-use regulations who teaches property law at the University of Hawaii’s William S. Richardson School of Law.
“Litigation is being used just to delay the heck out of projects,” Callies said. “I would be cautiously in favor of a statute that would provide expedited rulemaking that could prevent these delays.”
But it’s not only public interest lawyers who see potential problems. Robert Thomas, who often represents developers as a partner with Damon Key Leong Kupchak Hastert, is on the opposite end of the political spectrum from Townsend and Frankel.
Thomas noted that some new triggers allowing agencies to adopt emergency rules seem harmless. But Thomas questioned whether the state needs a new class of emergency rules to enable agencies to comply with court orders. And he echoed concerns about potential abuse.
“It looks fairly innocuous,” Thomas said. “But it could be an arsenic-laced cookie.”
Whatever the case, Hawaii’s emergency rulemaking power now far exceeds the standard, said Levin, who helped advise drafting of a model administrative procedure law used by states.
But, he added, the courts will decide how much power the agencies actually have under the new Hawaii law.
“A broad interpretation would play very poorly with most state supreme courts,” said Levin, who is co-author of an administrative law textbook.
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