Hawaiʻi Supreme Court backs Gov. Green’s emergency powers in affordable housing crisis

The Hawai‘i Supreme Court issued a decision on Thursday to uphold Gov. Josh Green’s use of emergency powers to mitigate the state’s affordable housing crisis.

In Nakoa III v. Governor of the State of Hawai‘i, Green 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 Hawai‘i’s cost of living,” Green said in a press release. “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 Hawaiʻi.”

Green issued the first in a series of 60-day emergency proclamations regarding affordable housing on July 17, 2023. These emergency proclamations were issued under emergency powers delegated to the governor in Hawaiʻi Revised Statutes chapter 127A.

The proclamations sought to address the state’s affordable housing shortage primarily by expediting and removing obstacles to the construction of affordable housing projects.

The affordable housing proclamations are still in effect today, with the Fourteenth Proclamation having been issued on July 29.

The plaintiffs brought a lawsuit challenging the proclamations, arguing that they exceeded the governor’s emergency authority, violated separation of powers principles, and violated article I, section 15 of the Hawai‘i Constitution. A circuit court on Maui dismissed the plaintiffs’ claims.

On appeal, the Hawai‘i Supreme Court upheld the housing proclamations. In making its decision, the court rejected the claims that the proclamations exceeded the governor’s powers and re-affirmed the principle that “the legislature has granted the governor and mayors the discretion to respond quickly to emergencies.”

Among other things, the Supreme Court emphasized the lack of affordable housing’s negative impact on the high cost of living in Hawaiʻi, Native Hawaiians, kūpuna, and “the common sense link between unaffordable housing and elevated stress, physical and mental health conditions.”

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.

“Today’s decision is an affirmation of the authority given the governor to respond quickly to emergencies that threaten the health, safety and welfare of Hawai‘i residents,” said Rayner, who argued the case for the state. “The decision recognizes the governor’s authority to recognize and declare such emergencies, and to take reasonable measures in response.”