Court reforms must start small

Lawmakers are on the right general track with a proposal to bring greater consistency to the handling of environmental disputes. But while a full-scale environmental court may prove to be the final solution, creating one now is not the way to start the process.

Senate Bill 632 has passed the Senate and is in the House for consideration. The current draft would establish environmental courts within each circuit, leaving the details of structure and administrative rules to the state Supreme Court and the chief justice.

But the jurisdictional framework is in the bill, and it’s broad, running the gamut of environmental laws, from the conservation and resources laws of Title 12 to disparate topics such as historic preservation and noise regulations. In most places where this has been tried, the tried-and-true approach has been to start with a fairly narrow scope and build from there.

In its testimony, the state Judiciary has staked out a position defending its ability to handle environmental lawsuits. The Judiciary "already has in place processes to ensure consistency in all cases," said Elizabeth Zack, the high court’s staff attorney, in written testimony to the Senate Committee on Judiciary and Labor.

"Furthermore," she added, "if any party in an environmental case is dissatisfied with the outcome in circuit courts, that party has a remedy by way of appeal to the Intermediate Court of Appeals and then to the Supreme Court."

Bolstering that argument, various environmental lawyers have told the Star-Advertiser privately that they don’t see a real problem with the capacity of judges parsing the technical aspects of environmental laws.

However, there is always room for improvement, and especially in a state with such a high value placed on environmental quality, a middle course here is worth exploring.

The state Department of Land and Natural Resources has its hand raised in search of help with its enforcement mission, for example.

"Consolidating environmental and natural resource law cases to a single judge in one circuit could facilitate the timely, fair and equitable disposition of such cases," said William Aila, the department’s director.

The rational way forward here, however, would be to take the Judiciary’s suggestion and "identify particular areas of concern" that could be handled as a pilot program. The courts could then report back to the Legislature to evaluate how or whether this kind of focus improves consistency or efficiency or any number of other measures of success.

It may be that some area within DLNR’s particular bailiwick — the laws and regulations handled by its enforcement branch, for example — could be a starting point.

Denise Antolini, an environmental law professor at the University of Hawaii, said that chronic understaffing and underfunding problems within the department’s Division of Conservation and Resources Enforcement could be relieved if its cases are consolidated within a docket at Circuit Court under a specific judge who is willing to undergo training. That means the various court proceedings could be scheduled at a regular time, enabling a more efficient process of the cases for officers and other staffers involved, Antolini said.

This sounds like a measured, reasonable pursuit for improving environmental jurisprudence. At some point this could expand in scope and administration, which is more or less what happened in Vermont, a pioneer in the environmental court strategy for the past two decades.

As in so many other initiatives of government, they often fall short of their goals. But if there is a route to success, the road map usually offers this guidance: Start small.