Decolonization Series: The Public Trust as a Tool for Restorative Energy Justice
By Lauren Ballesteros-Watanabe, Chapter Organizer | Reading time: 4.75 minutes
When we talk about public resources—land, water, energy—we have to talk about power. As foundational elements of life are not just resources; they are reflections of control, access, and responsibility. How they’re managed tells a deeper story about who benefits—and who bears the cost.
Over the past few months, the Energy Equity Hui, a statewide collaborative of energy professionals, has been exploring the themes of restorative justice and Hawaiʻi’s Public Trust Doctrine. Through two thought-provoking presentations from guest speakers, we examined how these frameworks can guide us toward a more equitable and resilient energy future.
What resonated through both talks was a clear and collective commitment to a justice-centered transition. There was wide recognition that reform alone is not enough. We cannot simply “fix” the system by avoiding past mistakes. Instead, we must use restorative justice and the Public Trust Doctrine as tools to redress deeper historical wounds—wounds that continue to shape our island home and the well-being of our communities.
As Professor Wallsgrove powerfully reminds us:
“A lesson of restorative justice is that recognition is about the uncomfortable act of listening to ideas and facts that do not echo in reinforcement of our existing norms. This will mean facing difficult truths, like the fact that the unjust and illegal theft of political sovereignty from the Hawaiian people is reflected in so many facets of modern life—even in something as seemingly technical and dry as energy policy.”
Restorative Energy Justice: A Framework for Healing
Energy justice in Hawaiʻi has been an underdeveloped framework, often overshadowed by the urgency of decarbonization that has justified the implementation of a centralized system. As Richardson Law Professor, Richard Wallsgrove, argues in his paper “Restorative Energy Justice,” a restorative approach fully considers historical harms and community costs—can ensure that our transition to clean energy does not replicate colonial and capitalist patterns of extraction and inequality. When we incorporate justice into our calculations—not just emissions—we move beyond technocratic fixes toward truly sustainable systems that honor land, people, and future generations.
As another Richardson Law School professor, Kapuaʻala Sproat, puts it, “For indigenous peoples, restorative justice is a cornerstone of redress because the harms suffered are not simple unequal treatment (entailing the remedy of equal treatment), but rather the loss of land, culture, health, and self-governance. So justice is not so much about seeking equality, but the restoration of those things wrongly taken or destroyed.”
Professor Wallsgrove’s paper on restorative energy justice brings up a critical point in how our energy utility turned itself into becoming a virtual monopoly since 1893, with several of its founders playing key roles in the overthrow. Bill 219 granted the government the right to “take over” the company’s equipment at the expiration of the ten-year franchise. With the franchise set to expire in 1903, the company succeeded in receiving an extension from the then-territorial legislature for thirty-five years. Since the act required ratification by the U.S. Congress. The company’s attorneys and executives travelled to Washington D.C. and successfully lobbied Congress to not only approve the extension but also modified the territorial legislation in several ways according to Wallsgrove, “including one change with particularly lasting relevance—it deleted the thirty-five year term and instead granted the company a perpetual franchise.”
The Public Trust Doctrine: A Hawaiian Worldview Foundation
Hawaiʻi’s public trust doctrine offers a powerful legal and cultural foundation for this shift. Unlike Western legal systems that center private ownership, Hawaiʻi’s version is uniquely informed by Indigenous values.
”Kamehameha I, was the founder of the kingdom, and to him belonged all the land from one end of the islands to the other, though it was not his own private property. It belonged to the chiefs and people in common…” -1840 Constitution
In the early Hawaiian Kingdom, land was not private property—it belonged to the chiefs and the people in common. Konohiki managed resources not for personal gain but to serve the makaʻāinana (commoners), ensuring equitable access to water and food within each ahupuaʻa. These rights were inseparable from responsibilities.
Upon completion of the Declaration of Rights and the Constitution of 1840, Hawai‘i transitioned to a constitutional monarchy. The 1840 Constitution was Hawaiʻi’s first detailed constitution and it established a governmental structure for the Hawaiian Kingdom. The 1840 Constitution also created a judicial system which included a supreme court. The supreme court was composed of the king, the kuhina nui (prime minister or regent), and four others appointed by the house of representatives.
In his book, No Mākou ka Mana: Liberting the Nation, Dr. Kamanamaikalani Beamer states how “The Kānāwai of 1839 (declaration of rights) are evidence of deliberate decision-making by the ali‘i, who created a new system of government by modifying existing structures and by negotiating European legal forms. The outcome was neither completely Anglo-American nor “traditionally” Hawaiian. Rather, it was a combination of both.”
Codified in the 1840 Constitution and later reinforced in the 1978 State Constitutional Convention, the doctrine has become a critical tool for protecting Native Hawaiian rights and natural resources. In
The landmark Waiahole water case made clear that the State must act not as a neutral umpire, but as an active trustee, taking initiative to protect and advance public rights. This isn’t just about the past—it’s about how we govern now.
Water as a Precedent for Energy
Water law in Hawaiʻi has evolved through community struggle and visionary rulings. The 1973 McBryde v. Robinson's case initiated a transformation in how water was understood—not as a commodity, but as a public trust resource.
By the time of the Waiāhole ruling in 2000, the Hawaiʻi Supreme Court articulated a dual mandate: protect water and promote its reasonable, beneficial use. Importantly, the Court recognized cultural practices—fishing, taro cultivation, stream health—as valid public trust purposes. Without water, these practices die.
Energy is no different. Energy, like water, is essential to life. Yet unlike water, energy development in Hawaiʻi has largely been shaped by monopolies, privatization, and the legacy of plantation capitalism. As Wallsgrove has pointed out, the growth of our utilities was not neutral—it was bound up in the consolidation of power by the Big Five.
And still today, community voices are often sidelined in energy decisions, particularly when private developers push large-scale projects on ʻāina without consent or transparency. The West Kauaʻi Hydroproject and its impacts on water access are just one example.
Energy Sources as a Public Trust Resource
So what if we reimagined our energy sources as public trust resources? Hawaiʻi’s Constitution already requires a balance: protecting natural resources while allowing for their development. But this balance demands a higher level of scrutiny for private commercial uses. What if, like water, we insisted that no single entity could own or profit disproportionately from our energy sources?
As beneficiaries of this trust, all Hawaiʻi residents should have a say in how our resources are managed. And as trustees, state agencies must move beyond passive regulation to proactive stewardship.
We can draw from models like the Commission on Water Resource Management (CWRM), which arose from crisis but created a space for public participation, transparency, and accountability. Imagine a Community Energy Board or a Maui-style Energy Authority where decisions are made with communities, not just about them.
What It Takes: Policy, Imagination, and Collective Will
Getting there requires both technical and cultural shifts. We may need:
Legislative amendments to explicitly name energy sources as public trust resources
A revamped energy code grounded in equity and Indigenous values
More inclusive case law that sets precedent for community rights in energy governance
Education and public engagement that empowers people as co-stewards
There is no silver bullet. Water law is still heavily contested. Energy systems are complex. But a public trust mindset—rooted in Hawaiian law and restorative justice—gives us a compass in making sure that our resources are stewarded as commons. Perhaps a public trust analysis and instutional change would also detract the very capitalist actions of our utility like giving out multi-million dollar bonuses while their customers face growing disconnections and asking the legislature (i.e taxpayers) for financial help.
It reminds us that resources are not just for markets—they are for life.
And if we approach energy the way we have begun to approach water—with kuleana, vision, and deep respect—we might just co-create an energy future that is not only clean, but just.