After a big settlement in Hawaii, can youth climate change lawsuits be successful in other states, too?

The settlement highlights the importance of state constitutions. Lawyers for the kids say they aren't slowing down anytime soon.

Kids rally for climate justice in Minnesota. Photo courtesy Lorie Shaull.

Today’s edition of Landmark dives further into the big news we covered out of Hawaii on Thursday, where the state government and a group of 13 young plaintiffs reached a first-of-its kind settlement to try to reign in the state’s transportation emissions. The post tries to explain whether the Hawaii results may be replicated elsewhere, and ends with a Q&A with Joanna Zeigler, an attorney at Our Children’s Trust who helped represent the kids in Hawaii. Enjoy!

After negotiating a groundbreaking settlement that aims to curb emissions from Hawaii’s transportation sector, lawyers representing young plaintiffs in climate change litigation across the U.S. say they have no intention of slowing down as they pursue similar claims elsewhere.

But legal experts say that, while the settlement is a significant milestone that could encourage other state governments to follow Hawaii’s lead, it is less clear whether it will directly serve as a watershed moment for broader climate litigation in the U.S.

Michael Gerrard, the director of Columbia Law School’s Sabin Center for Climate Change Law, told Landmark the Hawaii case enjoyed a few very favorable factors that may not exist elsewhere.

He said, for instance, that the Hawaii youth benefited from a sympathetic trial judge and state government that decided to play ball with the kids (after hiring outside counsel and spending a reported $3 million fighting the case).

Most importantly, Hawaii is one of just a few U.S. states with environmental rights explicitly written into its state constitution. It joins Montana (where youth prevailed after trial in a similar case last year) and other states such as Illinois, Massachusetts, New York, Pennsylvania and Rhode Island, he said.

“This kind of lawsuit will be more difficult in the rest of the states,” Gerrard said.

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A ‘Green Amendment’ for all the states?

All of the above highlights the importance and power of individual state constitutions, and efforts to bolster state constitutional language.

Separate from the litigation filed by youth in states across the U.S., activists have been pushing for years to expand the number of states with robust environmental protections in their constitutions.

Maya van Rossum, an attorney and founder of the organization Green Amendments for the Generations, told Landmark there are at least 17 states where so-called Green Amendments have been introduced.

Those amendments would go beyond most existing clean environment rights and would be self-executing, van Rossum said. That means the language can itself be enforced against government action when needed. Other state constitutional environmental rights typically give the ultimate power to define what a healthy environment is to the government, which can make cases like the one in Hawaii harder to argue and win, according to van Rossum.

In states where Green Amendments have been passed like New York, Pennsylvania and Montana, activists have already been successful in using the provisions to fight fossil fuel infrastructure and to clean up toxic sites, she said.

“We are in an all-hands-on-deck moment when it comes to protecting our climate, but also protecting the quality of the water, air and soils that support our lives,” Rossum said.

(Note: Rossum’s advocacy is independent of the work being done by the nonprofit law firm Our Children’s Trust, which represents the youth plaintiffs in the Hawaii and Montana cases, and has filed similar cases on behalf of young people across the U.S. It is also worth noting that there isn’t consensus on what exactly counts as an explicit constitutional right to a healthy environment, and Our Children’s Trust is clearly finding useful constitutional language to file cases anyway).

Youth-led litigation isn’t likely to slow down either way

Joanna Zeigler, an attorney for Our Children’s Trust, told Landmark that the settlement in Hawaii is far from the last you’ll be hearing from youth plaintiffs in constitutional climate cases against governments. Zeigler worked on the Hawaii case and is involved in other state cases across the U.S. She joined Our Children’s Trust two years ago (about the time the Hawaii case was filed) and lives in Oregon.

Below is a Q&A with Zeigler, which has been lightly edited for clarity and length.

Landmark: I'm wondering if you can contextualize this settlement in Hawaii, and how it’s different from the big win in Montana last year? And tell us about the importance of the Hawaii case in terms of the broader set of youth-led climate cases.

Zeigler: Hawaii is a win in the sense that we did get this monumental settlement. But it's different than Montana because in Montana they went to trial and litigated that case.

In Hawaii, the youth and the government officials were able to come together and talk about what was needed in the state and come up with this really great settlement agreement that is putting the state on a pathway to zero emissions within the transportation sector. So that's a unique aspect of the Hawaii case.

In the bigger picture of [Our Children’s Trust litigation] I would consider it another chapter, I guess. It’s certainly not the conclusion, but it's a really great model for other states to come to these types of agreements or figure out ways they can work with their communities and create a pathway to zero emissions.

We're certainly not slowing down. We still have several cases that are pending in other states like Virginia and Utah, and we just filed a lawsuit in Alaska challenging a liquefied natural gas project. So I would say this is just another step in the process of [Our Children’s Trust’s] overall mission of getting to the point of having a livable climate for our youth and future generations.

Landmark: Can you talk a little bit about what you think are the most significant, concrete steps included in the settlement? I think that there are lots of disillusioned people out there who might need help connecting the dots — how is this settlement going to actually get things done?

Zeigler: I think the one thing to emphasize is that there is a statute in place in Hawaii that requires net negative emissions by 2045. But the Hawaii Department of Transportation just really had no policy in place to reach that target. Transportation emissions are actually going up in Hawaii.

So I think the significant thing about the settlement agreement is, first and foremost, it requires the Department of Transportation to create a greenhouse gas reduction plan. And that plan needs to be put in place within a year of this settlement agreement. So, by May 2025, they'll have a greenhouse gas reduction plan in place. And a significant part of that is that the Department of Transportation will have to give us and the public 30 days to provide feedback on the greenhouse gas reduction plan before it is put into place and finalized. That's significant, and that is continuing to keep the youth in the process.

And, as part of the plan, the Department of Transportation will have to set interim five year greenhouse gas emissions targets through 2045. So they'll have targets for 2030, 2035 and 2040 for ground, air and marine transportation. So that is a way to kind of keep them in check. Those types of interim targets will help ensure that the Department of Transportation is in compliance with the settlement agreement and with achieving zero emissions.

(Zeigler noted there are other requirements for the state DOT, including that it evaluates vehicle miles traveled and work to build out its electric vehicle charging network, its public transportation systems and work to bolster bike and pedestrian transportation networks, among other things.)

It's really a detailed settlement agreement that helps the Department of Transportation get to a point where it has a plan to reach the zero emissions target. They are also going to create a climate change and mitigation unit within the Department of Transportation and it has committed to creating new positions to ensure the plan is being implemented.

And it creates a youth council. So, the youth plaintiffs and other youth within the community will have an opportunity to provide feedback and help within the planning process.

Landmark: I know Our Children’s Trust’s cases are generally against governments and not major oil and gas companies, but the fossil fuel industry and its allies have argued repeatedly in court and elsewhere that these sort of “local” cases won’t actually address climate change. The argument goes that climate change is a global problem and emissions come from all over — so, even if you eliminate emissions from Hawaii or some other hypothetical state, global warming still happens.

What is your response to that sentiment? Why does the Hawaii transportation system’s emissions matter?

Zeigler: As part of our 10 experts that we had — that participated pro bono — one addressed the fact that every ton of carbon matters. Every ton of greenhouse gas emissions that's been released into that atmosphere matters. So it does matter. And it is significant for Hawaii to reach the zero emissions goal.

Of course, it's a global issue. But every ton that is reduced and not emitted does have an effect. And transportation, at least nationwide, is one of the biggest emitters. If Hawaii can serve as a model for other states, that will also have a big impact in how we plan and implement our transportation choices nationwide.

Landmark: That leads perfectly into my next question. This was a settlement, so it doesn’t create any binding legal precedent. But, how do you view it in terms of maybe influencing other states? And are you expecting others to be looking closely at this?

Zeigler: I think so. I think that other states notice our cases — they certainly noticed Montana. And because transportation is one of the largest emitters nationwide, other states know that they have work to do as well.

I think they can look to Hawaii and say, “Well, Hawaii is creating this plan. Perhaps we can too, or perhaps we can use it as a model for ways to reduce in our state.”

So although, as you said, it's not a legal precedent. As far as citing it in another state, I think that it certainly poses as a model for other states to follow and perhaps even replicate.

Landmark: Hawaii is a Democratic state, with politics that are very different from Alaska, a Republican-led state where Our Children’s Trust just filed a new lawsuit. Does that political reality influence your thinking at all when considering whether to file new cases?

Zeigler: I don't think politics is necessarily always what we're thinking about when we bring a case. Alaska certainly has different politics than Hawaii. I think it's more of us finding cases where the state constitution and constitutional provisions are ones that we would like to use, and finding states where we see violations occurring. Montana is another example: they're certainly different than Hawaii as well. But we got that really great and positive result in Montana.

Landmark: Can we expect any new cases in the future?

Zeigler: We certainly have other cases on the horizon. I think it's just a matter of looking at other states and what the issues are. We're always researching and looking at what the next case will be.

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