Legal challenges are mounting against Hawaii Gov. Josh Green’s unprecedented effort to speed development of homes statewide, as plaintiffs allege the governor exceeded his power to suspend laws during times of “imminent danger or threat of an emergency or disaster.”

The outcome will determine the fate of Green’s initiative to address the state’s housing shortage. The likely alternative will be a return to a system in which county land use ordinances administered by local planning departments and county councils govern building, under the framework of a state-level land-use classification system. Green’s emergency proclamation has changed much of that — some say far too much — with the stroke of a pen.

The latest complaint was brought on Thursday by groups including the American Civil Liberties Union of Hawaii, the Sierra Club, Hawaii Advocates for Truly Affordable Housing and E Ola Kakou Hawaii, a Native Hawaiian organization. Joining the plaintiff groups is Kū’ikeokalani Kamakea-ʻŌhelo, a member of the Hawaii Land Use Commission.

The complaint alleges that Hawaii’s housing shortage isn’t the sort of emergency the Legislature envisioned when it handed the governor and county mayors sole power to declare when such an emergency exists — and power to suspend laws in response to the declared emergency.

The complaint echoes a similar complaint filed by a group of Hawaii residents.

The complaints also challenge the legal authority of Hawaii’s Chief Housing Officer, Nani Medeiros, and a panel known as the Building Beyond Barriers Working Group, established to administer a process to approve projects under the proclamation.

David Henkin, an attorney with Earthjustice, who is representing the ACLU and Sierra Club plaintiffs, said Green has done by executive order things the Legislature has considered and rejected.

“Everyone’s in agreement that affordable housing is a problem,” he said. “But the governor does not get to be a dictator just because there’s a problem. It is clearly in excess of his statutory authority.” 

Attorney General Anne Lopez disagreed. 

“The Emergency Proclamation on Housing is a lawful exercise of the Governor’s emergency powers as defined by law, and the emergency rules concerning the Build Beyond Barriers Working Group are valid,” Lopez said in a statement. “The Department of the Attorney General will vigorously defend against these lawsuits in court.”

Even if the judiciary sides with the plaintiffs, it’s not likely to hurt Green politically in the long run, said Colin Moore, a political science professor with the University of Hawaii Economic Research Organization.

Although Green campaigned on a promise to address Hawaii’s housing crisis, Green’s handling of the lethal Maui wildfires will define his first term, Moore said.

“I don’t think Green loses politically if the emergency proclamation is struck down,” Moore said. “He can say to everyone I tried my best.”

Hawaii’s “State of Emergency” statute gives the governor broad power to declare that an emergency exists. The governor is “sole judge of the existence of the danger, threat, or circumstances giving rise to a declaration of a state of emergency,” the statute says. Under the statute, the governor has power to suspend laws and adopt emergency rules that carry the force of law.

Essentially, the statute gives the governor the power to decide that an emergency exists, then to step into the role of the Legislature, suspending laws and adopting new ones.

The statute defines emergency as “any occurrence, or imminent threat thereof, which results or may likely result in substantial injury or harm to the population or substantial damage to or loss of property or substantial damage to or loss of the environment.”

These broad powers and definitions has led the emergency statute to be used in the past to address long-standing social issues that had nothing to do with human-made or natural disasters. Green’s predecessor, former Gov. David Ige, used these emergency powers to issue an emergency proclamation related to homelessness. It allowed Ige to steer funds to address homelessness outside of the normal budget process.

Green’s Emergency Proclamation

In July, Green did something similar but on a far broader scale.

His emergency proclamation on housing declared Hawaii’s housing shortage to be an emergency. It included pages describing problems caused by the lack of housing in Hawaii. The proclamation went far beyond the “affordable housing” policies that dominate discussion of housing.

“There is a large segment of the population that earns too much to qualify for traditional affordable housing programs, yet too little to afford to buy or rent market rate housing,” the proclamation said. “This gap is not being addressed by existing housing policy, rendering the need for an increase in all housing for our local people all the more visible.”

The result was the suspension of a range of land-use and environmental laws. In place of often lengthy public processes, the proclamation established a certification process to be administered by the Building Beyond Barriers Working Group of state and local officials and non-governmental organizations, including both the Sierra Club and the Land Use Research Foundation, a developers’ organization. Medeiros was put in charge as the group’s chair. 

In many cases, the proclamation replaced statutes with rules creating truncated processes to review impacts on the environment and cultural resources, including Native Hawaiian burial sites. The proclamation suspended Hawaii’s open meetings law; the public’s opportunity to testify on a particular project would be limited to written public comments and at least one town hall meeting. 

Some developments faced lower barriers. Projects developed by the Department of Hawaiian Home Lands and the Hawaii Public Housing Authority, for instance, would not need working group certification: the lead housing officer could simply approve these, although developers would have to follow DHHL and HPHA statutes and rules.

The declaration drew immediate scorn from environmentalists and others, who questioned whether Hawaii’s housing issues presented an emergency. Among the critics was Wayne Tanaka, a member of the working group who also serves as executive director of the Hawaii Sierra Club. One opponent evoked images of 700-foot-tall towers going up in residential neighborhoods. 

Developers expressed cautious optimism, saying removing red tape would speed building and thus lower costs. But it was not clear that the proclamation would result in many more homes at lower prices for Hawaii residents.

A meeting of the Build Beyond Barriers Working Group on Tuesday featured impassioned testimony from the public, as well as a speech by working group member Sterling Higa, executive director of Housing Hawaii’s Future, who called on county councils to amend land-use laws that slow home building.

Although criticism of the declaration was immediate, the wildfires that destroyed Lahaina on Aug. 8 seemed to galvanize opposition.

On Tuesday, the working group met to discuss an agenda considering a handful of items. Medeiros started the meeting by saying most the items had been dealt with, leaving just one: a proposal to fast-track hiring of inspectors to speed up renovation of state public housing units. 

Still, the working group spent the 90 minutes hearing mostly angry public comments, many focused squarely on the working group. 

At one point, Sterling Higa, founder of the organization Housing Hawaii’s Future who also is a working group member, gave an impassioned speech arguing that the working group wouldn’t need to exist if the counties did a better job.

“My general take is we wouldn’t need the emergency proclamation if not for an abject failure by the counties,” he said in an interview. “I’m going to keep beating that drum, because I think it’s true.”

It may be open for debate whether Hawaii’s housing issues are the result of an “abject failure” by county councils or a decision by the councils to keep a lid on development. Regardless, Earthjustice’s Henkin said Green has seized power from the Legislature and county councils. The emergency proclamation, Henkin’s complaint says, has hallmarks of a bill – not something drafted amid the chaos of a critical moment in time.

“Defendant Green and others in his administration worked on the Proclamation for at least six months prior to the Proclamation’s issuance and, during that time, met with over 200 groups and individuals to receive input on the policies to be implemented in the Proclamation,” the complaint says. “These months of advance policy work are hallmarks of the formulation and adoption of legislation, which the Hawai‘i Constitution reserves to the Legislature, not of a response to the sudden occurrence or threat of ‘disasters or emergencies of unprecedented size and destructiveness resulting from natural or human-caused hazards.’”