ENVIRONMENTAL RIGHTS

 

     Section 9.  Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law. [Add Const Con 1978 and election Nov 7, 1978]

 

Law Journals and Reviews

 

  Enforcement of Environmental Laws in Hawai`i.  16 UH L. Rev. 85.

  A Suggested Framework for Judicial Review of Challenges to the Adequacy of an Environmental Impact Statement Prepared under the Hawaii Environmental Policy Act.  18 UH L. Rev. 719.

  Hawai`i Constitution, Article XI, Section 1:  The Conservation, Protection, and Use of Natural Resources.  19 UH L. Rev. 177.

  When Nobody Asks:  The Toxic Legacy of Oahu's Pineapple Lands.  29 UH L. Rev. 553.

  Ala Loop and the Private Right of Action Under Hawai`i Constitution Article XI, Section 9:  Charting a Path Toward a Cohesive Enforcement Scheme.  33 UH L. Rev. 367 (2010).

  The Moon Court's Environmental Review Jurisprudence:  Throwing Open the Courthouse Doors to Beneficial Public Participation.  33 UH L. Rev. 581 (2011).

  A Self-Executing Article XI, Section 9-–The Door For a Bivens Action for Environmental Rights?  34 UH L. Rev. 187 (2012).

 

Case Notes

 

  Section does not enlarge subject matter jurisdiction of federal courts.  714 F.2d 77.

  Chapter 205 is a law relating to environmental quality within the meaning of this section as it implements the guarantee of a clean and healthful environment established by this section.  123 H. 391, 235 P.3d 1103 (2010).

  In the circumstances of the case, this section created a private right of action to enforce chapter 205, and the legislature confirmed the existence of that right of action by enacting §607-25, which allows for the recovery of attorneys' fees in such actions.  123 H. 391, 235 P.3d 1103 (2010).

  This section is self-executing, and §205-12 imposes "reasonable limitations and regulations" that were applicable to the case which allowed the private right of action to enforce chapter 205.  123 H. 391, 235 P.3d 1103 (2010).

  Because:  (1)  §6E-13(b) allows a suit to be brought only for a restraining order or injunctive relief and is an exception to the sovereign immunity doctrine for which no waiver is necessary, and therefore does not contain a waiver of the State's sovereign immunity; and (2)  nothing in this section expressly waived the State's immunity for attorney's fees, there was no clear relinquishment of the State's sovereign immunity, and thus, the State's immunity barred petitioner's request for fees based on the private attorney doctrine.  129 H. 454, 304 P.3d 252 (2013).

 

 

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