Local media is reporting that Hawai’i County is starting to backtrack on bringing a climate lawsuit against energy companies because similar cases around the country have been decisively defeated. One local councilmember goes as far to say that the potential money won from a victory is the only reason the idea should be kept alive.

In July, Hawai’i County Corporation Counsel Joe Kamelamela announced that the county is considering a lawsuit, but earlier this month, West Hawai’i Today reported that Kamelamela isn’t too excited to take his community down a losing path:

“There’s a lot of uncertainty…And a lot of that uncertainty comes from knowing that a lot of these similar lawsuits have been dismissed in federal court.”

Kamelamela has good reason to worry about the county’s chances in court. Numerous lawsuits filed by other U.S. municipalities have yet to see any significant success, including Honolulu, which filed a similar public nuisance climate change lawsuit against a group of energy companies in March.  There have plenty of losers, as Kamelamela noted, including San Francisco and Oakland and then New York City, which were dismissed by federal judges in 2018.

Seeing these failures and a host of other challenges, it now appears Hawai’i County is attempting to backtrack out of filing a lawsuit. Originally, Hawai’i County considered becoming a co-plaintiff on Honolulu’s lawsuit, but changed course after Kamelamela said any case filed by the county would be similar in principle, but “just too different,” making the idea of the two municipalities joining forces less likely.

Kamelamela also stated that Hawai’i County could “let Oahu make the mistakes, and then we’ll join when they have been worked out,” effectively freeriding on what could be costly litigation efforts for Honolulu and admitting that public nuisance climate litigation as it stands today is far from perfect.

The Real Motivation? Money.

With so much doubt about the viability of the lawsuit, why is Hawai’i County still clinging on the idea? Because as Councilman Aaron Chung blatantly admitted, it’s all about the money. Chung doesn’t want to spend money on outside counsel; instead, he wants pro bono assistance with the assurance a lawsuit could be lucrative for the county:

“But if we can get some money from [the companies’] deep pockets, then sure, why not.”

It’s rare that we see a public official make such an honest comment, but thanks to Chung, we now know that money is about the only motivation Hawai’i County has left. Unfortunately for Chung, he’ll be disappointed to find out that the plaintiffs’ attorneys pushing climate litigation stand to make millions of dollars because they’re often working on a contingency fee basis. For example, Sher Edling LLP,  the plaintiffs’ firm representing Honolulu in its case, stands to make 25% of the first $100 million, 15% the amount between $100-$150 million, and 7.5% of any remaining amount over $150 million if it is successful in representing San Francisco in its ongoing climate lawsuit, according to the firm’s contract with the city.

The pursuit of a big payout appears to be a common theme among Hawaiian municipalities pursuing climate litigation. As Energy In Depth noted at the time, when Honolulu introduced its case, it sought a “disgorgement of profits” from energy companies, which as Cornell Law School describes as “a remedy requiring a party who profits from illegal or wrongful acts to give up any profits he or she made as a result of his or her illegal or wrongful conduct.”

Chung also admitted the other major problem with these lawsuits. All of the Hawaiian Islands are greatly dependent on traditional energy, including his own personal modes of transportation:

I’m worried we’re blaming others for our own shortcomings…Just speaking for myself, I had a hybrid vehicle once, but right now, I have two cars, and they both take gas.” (emphasis added)

As Energy In Depth has previously explained, the state of Hawai’i needs oil, natural gas, and other petroleum products to support its economy and tourism industry, generate power, and import food and goods. All those airplanes and ships carrying tourists and products need plenty of jet fuel, gas, and diesel to make it across thousands of miles of ocean.

Waiting for the Wrong Solution

In his conversation with West Hawai’i Today, Kamelamela said “we lose nothing by waiting” to file a public nuisance case against energy companies. However, waiting, and then putting all its eggs into the climate litigation basket, would undermine Hawai’i County’s ability to realistically address climate impacts. Litigation would take significant time and resources away from tangible actions that would make the County more prepared to combat climate change.

If Hawai’i County leaders are serious about wanting to address climate change impacts in their community, they should work toward developing innovative solutions, not waiting to see how climate litigation will shake out on the mainland.