The Hawaii Supreme Court outlined limitations to the governor’s emergency power in a ruling that upheld Gov. Josh Green’s 15 proclamations related to the development of affordable housing but noted the first five went too far.

Green issued the first of 15, 60-day Emergency Proclamations regarding affordable housing on July 17, 2023, to expedite the construction of more than 50,000 affordable housing units.

The emergency housing development rules waived or modified parts of several state and county regulatory procedures, including Land Use Commission rules, to build more affordable housing without adverse impact.

Green’s attempt to solve a
decades-old problem in one of the most expensive places in the U.S. to build a home was met by lawsuits in September 2023.

One of those lawsuits was filed in August 2023 in Maui Circuit Court by attorney Lance Collins and three other Hawaii lawyers on behalf of nine people who contested the legal authority of Green’s Build Beyond Barriers Working Group

It alleged that the proclamations exceeded the governor’s emergency authority, violated separation of powers principles, and violated Article I, Section 15 of the Hawaii Constitution.

The Maui court dismissed the claims and they appealed.

“(W)hile we do not void the First through Fifth Proclamations, we hold that the first five proclamations exceeded the scope of the emergency management statute,” said the state Supreme Court justices in a 70-page ruling Thursday.

“The proclamations were all rationally related to the health, safety, and welfare of the public. But the proclamations’ Build Beyond Barriers Working Group and over-inclusive certification process, absent further limitations tailored to the development of affordable housing, was not reasonably necessary to address the declared emergency,” the court ruled in Nakoa III v. Governor of the State of Hawaii.

On Feb. 23, 2024, Green abolished the seven-month old Build Beyond Barriers Working Group.

The group was established under a July 2023 emergency proclamation, and by Dec. 20 approved its first housing project by granting a school impact fee waiver to a developer converting a downtown Honolulu office mid-rise into 52 rental apartments.

The 36-member panel initially was empowered to sidestep state laws regulating housing development.

The court concludes first through the fifth proclamation
“exceeded the scope of the emergency management statute” although they were “rationally
related to the health, safety, and welfare” of the public.

“But the Build Beyond Barriers Working Group and its overly-inclusive certification process, with no specific limitations to affordable housing, was not reasonably necessary to address the declared emergency,” the justices ruled.

Green’s initial proclamation “swept too broadly” by suspending 22 chapters and statutory
provisions. The remaining proclamations did not exceed the governor’s authority, they said.

The court noted the first five proclamations’ “certification process expedited all housing development,” not just affordable housing. The process gave priority to affordable housing but all developments could be fast-tracked.

“More housing alone does not correlate to more affordable housing in the short term. Expediting development generally is not a targeted, urgent solution to the lack of affordable housing. The certification process opened the suspension of laws and rules to all housing projects,” according to the ruling.

Collins lauded the court’s decision in a statement, saying it set a new “statewide standard for reviewing executive emergency powers.” The court made clear that the governor’s emergency powers may be called into question and reviewed, he said.

“It ensures that emergency powers are exercised responsibly and that urgent issues, like affordable housing, are addressed without just handing over the government to private developers,” said plaintiff Leonard “Junya” Nakoa, in a statement Thursday.

In a statement Thursday, Green said his administration prevailed against a legal challenge seeking to invalidate his Affordable Housing Emergency Proclamations, with the Supreme Court holding that “the series of emergency proclamations related to affordable housing issued by the governor are valid.”

“More affordable housing is necessary to reduce Hawaii’s cost of living,” said Green, in a statement. “My administration has been working hard to break down obstacles that can impede affordable housing development. The Supreme Court’s decision is another step forward as we continue this crucial work for the people of Hawaii.”

Green was represented by Deputy Solicitor General Ewan C. Rayner and Deputy Attorneys General Linda L.W. Chow, Klemen Urbanc, and Chase S.L. Suzumoto.

Rayner, who argued the case
before the Hawaii Supreme Court, praised the decision as an affirmation of the governor’s ability to respond “quickly to emergencies that threaten the health, safety and welfare of Hawaii residents.”

“The decision recognizes the Governor’s authority to recognize and declare such emergencies, and to take reasonable measures in response,” Rayner said.