Housing Proclamation Impacts to Environmental and Native Hawaiian Law


By Daylin-Rose H. Heather

On July 17, 2023, citing Native Hawaiian hardship and the need for more housing units, Gov. Josh Green issued a sweeping “Emergency” Proclamation on Housing that attempted to unilaterally fast-track development in Hawaiʻi without safeguards ensuring units are truly affordable to local families; suspend a bevy of laws, including those meant to ensure impacts to the environment, traditional and customary practices, and iwi kūpuna are assessed before a project commences; and shut the door on public participation and transparency in vital steps of the decision-making process.

There is no question that Hawaiʻi is in desperate need of solutions to its affordable housing crisis, which Green’s proclamation acknowledged has existed since at least 1935 when the Hawaiʻi Housing Authority was first created.

It is probably more accurate to say that the housing crisis started in the 1800s with the privatization of land through the Māhele long before any of the laws were suspended by the original emergency proclamation.

At issue with this proclamation was not whether there is a housing problem, but rather, how this problem is solved, who will need to sacrifice to meet Hawaiʻi’s housing needs, and who gets to decide.

Laws suspended in the original proclamation, including Hawaiʻi Revised Statutes Chapters 6E, 205, and 343, specifically provide for consultation with those directly affected by a proposed new land use, and seek to create a dialogue between project proponents and affected communities long before construction begins.

The July 17 proclamation undermined this process while offering no evidence demonstrating a connection between these laws and the shortage of affordable housing in Hawaiʻi – or that the public wishes to sacrifice these protections for the promise of more housing stock. Indeed, it was the advocacy of Native Hawaiians and their allies that originally secured many of the legal protections suspended by the proclamation.

The history of Native Hawaiians not only includes incredible loss of land and natural resources, culture, and political agency leading up to and resulting from the illegal overthrow of 1893 and annexation of 1898, but also incredible resiliency and continued engagement in the face of changing political and social pressures.

Green’s administration describes one of his housing goals as, “Encouraging our communities to embrace the ʻYes in My Back Yard’ mentality and calling them back to our values of Aloha.” Native Hawaiians are not simply “Not-In-My-Backyard” naysayers because they want – and have successfully secured – a seat at the table where the decisions are made that affect the quality of their lives and their relationship to their iwi kūpuna and ‘āina.

When adopting laws to encourage sound land uses, safeguard iwi kūpuna, protect the environment, and ensure public participation, Hawaiʻi’s lawmakers and courts sought balance between the competing needs for new construction for housing and the economy, and protection of the life-giving, life-sustaining natural and cultural resources and practices that define Hawaiʻi and Native Hawaiians as a people. These systems are far from perfect, but they are far better than the system established by the July 17 proclamation, which undermined transparency and created the opportunity for backroom deal-making.

On Sept. 15, 2023, after justifiable public outcry, multiple lawsuits, and the expiration of the original proclamation, Green issued a new proclamation that abandoned many of the harmful suspensions and provided more guidance on what is considered a certifiable “affordable housing project.”

Constitutional and other legal questions remain about the governor’s exercise of unilateral authority that sidesteps the legislative process, but key protections that Native Hawaiians and their allies fought hard to secure are safe for now.

This outcome demonstrates the value of the public, and especially Native Hawaiians, engaging all available tools for registering opposition to abuses of power like this. Discussions weighing the need for housing and development against protections for the environment and iwi kūpuna will continue for the foreseeable future, so it is important that Native Hawaiian communities and the public remain vigilant as decisions are being made that could directly shape the future of the Hawaiʻi that the next generation will inherit.

Daylin-Rose H. Heather is a staff attorney at the Native Hawaiian Legal Corporation, a nonprofit law firm dedicated to the advancement and protection of Native Hawaiian identity and culture.