Public Trust Doctrine: Humanizing the Energy Transition
by Lauren Ballesteros-Watanabe, Chapter Organizer | Reading time: 4.25 minutes
Anything related to renewable energy often comes with the caveat of how "complex" it all is. While there is truth to this statement, it often feels like a way to gate keep decision-making, delegating this complex process to so-called experts. Given that we are significantly behind on our ambitious 100% renewable energy mandate, it seems a radical overhaul in our approach to the energy transition is necessary. Perhaps an "all hands on board" approach is needed, one that not only democratizes decision-making but also fundamentally shifts the paradigm of what energy means to our everyday lives. Most importantly, it should insert justice and equity into the clean energy system we so desperately need.
However, to fully harness this potential, a major paradigm shift must take place, not only in our conversations on equity but at the core of our institutions. A fundamental first step would be to truly treat renewable energy sources as a public trust resource. This approach will not only secure Hawaiʻi's energy future but also align with the state's commitment to environmental stewardship, economic resilience, cultural preservation, and social equity.
The ticking clock may be a legitimate obstacle, but it is also a reason to push even harder for a “go slow to go fast” methodology. This approach has led Molokaʻi residents to champion an island-wide 100% renewable energy portfolio through a community-led and expert-informed collaborative planning process. Top priorities included self-sufficiency, reduced bills, and resilience/disaster preparedness, all rooted in community values that recognize the importance of balancing energy development with its impacts, focusing on aloha ʻāina as a guide to preserve the integrity of both. It took them two years to build this plan, and they are confident in the outcomes and ready to move quickly to get the projects online. What community throughout the islands wouldn't want the same thing?
To achieve a truly just transition that benefits all of us—not just a privatized and commodified system that has mostly benefitted outside interests since Hawaiian Electric’s inception—we must shift our approach. Energy sources are explicitly listed among those held in public trust, so it is not just a moral imperative to move away from a profit-driven industry. The public trust doctrine provides a powerful legal and ethical framework that can help Hawaiʻi achieve its energy goals while protecting the environment and promoting social equity.
The public trust doctrine in Hawaiʻi is a legal principle rooted in both state law and traditional Hawaiian concepts of stewardship and communal responsibility. This doctrine establishes that the government has a duty to protect and maintain these resources for the benefit of current and future generations. Here are the key aspects of the public trust doctrine that would greatly benefit use in the energy transition:
Traditional Hawaiian Stewardship: The concept of the public trust in Hawaiʻi is deeply influenced by Native Hawaiian customs and values, particularly the principle of mālama ʻāina, to care for and nurture the land. This traditional understanding emphasizes a collective responsibility to manage natural resources sustainably.
State Constitutional Provisions: Hawaiʻi's Constitution explicitly incorporates the public trust doctrine. Article XI, Section 1 of the Hawaiʻi Constitution declares that all public natural resources are held in trust by the state for the benefit of the people. This includes land, water, air, minerals, and energy resources.
Judicial Interpretations: Hawaiʻi courts have played a crucial role in defining and enforcing the public trust doctrine. Landmark cases such as "Waiahole Ditch Combined Contested Case Hearing" (2000) have affirmed that the state has an obligation to protect, control, and regulate the use of water resources for the benefit of its people, emphasizing sustainable and equitable use.
Key Components of the Public Trust Doctrine that are needed in energy planning:
Protection of Natural Resources: The state must safeguard natural resources against overuse, depletion, and environmental degradation. This involves active management and regulation to ensure that resources are used sustainably. Since we are utilizing natural resources for our energy grid, we must be mindful not to exacerbate further resource tensions, as seen in the AES/Kauaiʻi Island Utility Cooperative Project in West Kauaʻi. We can’t have a future where we choose between food, water, or energy.
Public Use and Access: Natural resources under the public trust doctrine must be accessible to the public for activities such as recreation, cultural practices, and subsistence. This access must be balanced with conservation needs to ensure that resources are not overexploited. Recognizing renewable energy as part of the shared commons and offering democratic alternative ownership structures such as cooperatives or municipalities would be powerful.
Intergenerational Equity: The doctrine requires that the state manage resources not only for the current population but also with consideration for future generations. When discussing different renewable energy resource types, this principle ensures that resource use today does not compromise future generations’ ability to meet their needs regarding water, land, food, etc.
Governmental Duty and Accountability: The state has an affirmative duty to protect and manage trust resources. This involves creating and enforcing laws, regulations, and policies that uphold the principles of the public trust. Government actions and decisions regarding these resources must be transparent and accountable to the public. The state and counties are improving in this area, especially the local heroes we have working at the Board of Water Supply in light of the Red Hill fuel spills.
Recognizing that getting our agencies to enact the Public Trust Doctrine in the energy sector will take a groundswell of advocacy, this article is meant to be a starting point. Next, we plan to escalate the conversation by asking our legal friends and advocates with extensive public trust knowledge to help us understand what the energy system would look like if it was treated the same as water and land. Board of Energy Supply have a nice ring to it for you too? This is not just an environmental imperative but a socio-economic necessity. Stay tuned for more!