Nakoa III: Dual‑Check Standard for Emergency Proclamations, Mandatory HRS §127A‑27 Process, and Environmental‑Right Standing

Introduction

In Nakoa III v. Governor of the State of Hawai‘i, the Hawai‘i Supreme Court delivered a landmark opinion clarifying the scope and review of executive emergency powers under Hawai‘i’s Emergency Management statute, HRS chapter 127A. The Court addressed challenges by multiple residents to a series of gubernatorial emergency proclamations aimed at accelerating affordable housing approvals by suspending a suite of state and county laws and by adopting emergency rules.

The case raised intertwined questions: whether the issues were justiciable, whether the plaintiffs had standing, what procedural pathway must be used to challenge emergency measures, what counts as an “emergency” under HRS chapter 127A, and what standard governs judicial review of the Governor’s emergency proclamations and related actions. It also required the Court to decide whether the proclamations violated separation of powers or the Hawai‘i Constitution’s “suspension of laws” provision.

The Court’s opinion does far more than resolve this case. It establishes (i) a substantive, two‑part standard for reviewing emergency proclamations; (ii) that “emergencies” can include long‑standing crises that crescendo to threaten public health, safety, or welfare; (iii) that future challenges must proceed through the special three‑judge procedure in HRS §127A‑27 even when styled as declaratory judgments; and (iv) that environmental-right standing under article XI, section 9 can be grounded in the suspension of HRS §46‑4 (county zoning), a “law relating to environmental quality.”

Summary of the Opinion

Procedurally, the Court vacated the Second Circuit’s dismissal of plaintiffs’ declaratory judgment claims and reached the merits. It held:

Mootness: The public interest exception applied; the issues were not moot.
Standing: Plaintiffs had standing under HRS §632‑1 because suspension of HRS §46‑4 affected their constitutional right to a clean and healthful environment (article XI, section 9). First Amendment and taxpayer standing were rejected.
Procedure: HRS §127A‑27’s three‑judge panel and expedited process is the required path for challenges to emergency proclamations, including declaratory actions. Plaintiffs’ failure to use it was excused here, but the rule governs prospectively.
Definition of “Emergency”: An “occurrence” in HRS §127A‑2 includes ongoing or escalating conditions; emergencies need not be sudden or unforeseen.
Judicial Review Standard: Courts will not disturb a proclamation when (1) the emergency declaration is rationally related to public health, safety, and welfare, and (2) the executive actions taken are reasonably necessary—i.e., proportionate and tailored—to address the emergency, supported by an articulated factual basis.
Application: The Sixth through Fifteenth affordable housing proclamations are valid. The First through Fifth exceeded statutory authority because they fast‑tracked all housing (not just affordable housing) and centralized sweeping decision‑making in a new State Lead Housing Officer and a Working Group. The Court’s invalidation is prospective only and does not unwind past certifications.
Separation of Powers and Delegation: No violation. HRS §127A‑13(a)(3) (suspension of laws) and HRS §127A‑25 (emergency rulemaking) are constitutional delegations with adequate safeguards; rules may have the “force of law” when authorized by statute.
Article I, Section 15: The “suspension of laws” clause pertains to the privilege of habeas corpus; it does not limit emergency suspensions unrelated to habeas.

Analysis

Precedents Cited and Their Influence

Kaho‘ohanohano v. State and Office of Hawaiian Affairs v. Kondo: These decisions anchor the public interest exception to mootness. The Court applied their three‑factor test to hold that the scope and recurrence of serial proclamations and the interpretation of major governance statutes warrant immediate judicial guidance.
Tax Foundation of Hawai‘i v. State and County of Hawai‘i v. Ala Loop Homeowners: The Court used these to recognize article XI, section 9 environmental-right standing. HRS §607‑25’s fee‑shifting statute identifies chapter 46 among “laws relating to environmental quality,” supporting the conclusion that suspending HRS §46‑4 implicates environmental rights and confers a “concrete interest.”
For Our Rights v. Ige: The ICA reached the merits of a COVID‑19 challenge without invoking HRS §127A‑27. Plaintiffs reasonably relied on that approach. Nakoa III clarifies prospectively that §127A‑27 is mandatory for future challenges, even declaratory ones, and expressly rejects relying on legislative inaction as “ratification” of continuing emergencies.
Jacobson v. Massachusetts: The venerable public‑health case provides the conceptual backbone: state action during emergencies must have a real or substantial relation to the public health objective and may not be a plain, palpable invasion of fundamental rights. Nakoa III adapts Jacobson into a Hawai‘i‑specific, two‑part test with emphasis on factual grounding and proportionality.
Worthington v. Fauver (N.J. 1982) and County of Gloucester v. State (N.J. 1993): These decisions reject the notion that an emergency must be sudden; they accept that long‑term problems (e.g., prison overcrowding) can reach emergency proportions requiring centralized executive response. They also stress proportionality and duration—courts must watch for emergency measures that persist so long they supplant ordinary governance.
Amdor v. Grisham (N.M. 2025): The New Mexico Supreme Court upheld emergency orders addressing gun violence, requiring an articulated factual basis and a fair tendency to achieve the public health aim. Nakoa III borrows Amdor’s insistence on fact‑based justifications and a rational nexus to specific harms.
Desrosiers v. Governor (Mass. 2020), Casey v. Lamont (Conn. 2021), Beshear v. Acree (Ky. 2020), and Wolf v. Scarnati (Pa. 2020): These cases inform the separation‑of‑powers and non‑delegation analysis. The common thread: legislatures may confer emergency authority with safeguards; executive rules implementing statutes can have the force of law without usurping legislative power.

The Court’s Legal Reasoning

1) Justiciability and Standing

The Court held the controversy satisfies the public interest exception to mootness because serial 60‑day proclamations are hard to litigate before they expire, the scope of emergency power touches core governance and public policy, and the issues are likely to recur. It then found standing under HRS §632‑1 by tying plaintiffs’ article XI, section 9 environmental right to the suspension of HRS §46‑4 (county zoning), a law “relating to environmental quality” by statute and precedent. The Court rejected First Amendment and taxpayer standing.

2) The Required Procedure for Challenges: HRS §127A‑27

The Court announced a clear procedural rule for the future: all challenges (including declaratory actions) to emergency proclamations, rules, or orders under HRS chapter 127A must use the special three‑judge panel process in HRS §127A‑27. That process features expedited scheduling, temporary stays of limited duration, and notice requirements to the Governor and Attorney General. Plaintiffs’ deviation here was excused due to reliance on prior practice and the need to resolve important legal questions.

3) What Counts as an “Emergency” in HRS Chapter 127A

Focusing on the statutory definitions of “emergency,” “disaster,” and “occurrence,” the Court rejected a “suddenness” requirement. Ongoing conditions can qualify when they reach crisis levels that threaten substantial harm to people, property, or the environment. The First Proclamation’s account of housing‑related health, safety, and welfare harms (stress, mental and physical health effects, kūpuna poverty, loss of essential workers, Native Hawaiian diaspora, family stability impacts) provided a plausible factual basis.

4) Judicial Review Is Not Barred by the “Sole Judge” Clause

HRS §127A‑14’s statement that the Governor “shall be the sole judge” of the circumstances giving rise to an emergency does not preclude judicial review of whether the executive has complied with statutory limits. The statute’s own litigation procedure (§127A‑27) presupposes review. Courts retain their constitutional role to determine if executive actions are authorized and lawful.

5) The New Two‑Part Review Standard

The Court adopted a dual‑check standard for evaluating executive action under HRS chapter 127A:

Rational relationship to public health, safety, and welfare: The declaration and measures must be supported by an articulated factual basis demonstrating a plausible connection to protecting health, safety, and welfare. This is more demanding than ordinary “rational basis” review of statutes and reflects Jacobson’s “real or substantial relation” approach.
Reasonable necessity (proportionality and tailoring): Actions must be proportionate to the emergency’s severity, tailored to the specific crisis, limited in time and scope, and responsive to changing conditions. Courts consider not only the breadth of measures but also their duration; “forever” emergencies that function as policy substitutes for normal governance are suspect.

6) Applying the Standard to the Proclamations

All proclamations shared the same declared emergency and thus the same threshold nexus to health, safety, and welfare; the Court found that nexus satisfied. The dividing line is proportionality and tailoring:

First through Fifth Proclamations (overbroad): These created a State Lead Housing Officer, a Build Beyond Barriers Working Group, and a certification process open to all residential development, not just affordable housing. They suspended numerous statutory regimes (historic preservation, procurement, civil service, county zoning, environmental review, land use commission procedures) and shifted consequential discretionary decisions outside the established agency framework. Because they fast‑tracked all housing rather than affordable housing, they were not reasonably necessary to the declared emergency. The Court’s invalidation is prospective only to preserve reliance interests.
Sixth through Fifteenth Proclamations (valid): Beginning with the Sixth, the proclamations narrowed eligibility to defined categories of affordable housing (including HHFDC‑certified projects with specified affordability thresholds) and returned certification functions to HHFDC, an expert, statutorily authorized agency. These measures were reasonably necessary and properly tailored to the affordable housing crisis.

7) Separation of Powers and Non‑Delegation

The Legislature authorized suspension of laws (HRS §127A‑13(a)(3)) and emergency rulemaking with the force and effect of law (HRS §127A‑25). Exercising those powers during an emergency does not usurp legislative authority; it operates within legislatively defined contours and temporal limits. The Court found sufficient safeguards to satisfy the non‑delegation doctrine and emphasized that “force of law” for rules reflects statutory authorization, not independent lawmaking.

8) Article I, Section 15 (Habeas and Suspension of Laws)

The constitutional clause’s reference to “the laws or the execution thereof” is tethered to the privilege of habeas corpus. It does not constrain the Governor’s statutory suspension of laws unrelated to habeas. Plaintiffs’ reliance on that provision failed.

9) Prospective Application and Duration

To avoid disrupting certified projects and investment‑backed reliance, the Court applied its invalidation of the early proclamations prospectively. It cautioned that protracted emergencies may become unjustified if they morph into a long‑term policy surrogate; courts will consider the total duration and evolution of the emergency, the government’s capacity to manage the issue through ordinary channels, and signs of “permanent” policy by proclamation. Two years into the housing emergency, the Court still found reasonable necessity, but it expressly warned against “forever” emergencies.

Impact and Implications

Immediate Practical Effects

Validation of current regime: The Sixth through Fifteenth proclamations stand. HHFDC‑centered certification and narrowed suspensions remain operative through the proclamations’ expiry dates unless changed or withdrawn.
No retroactive unraveling: Projects certified under the first five proclamations are not unwound; the ruling operates prospectively to preserve reliance interests.
Procedural reset: Future challenges must employ HRS §127A‑27’s three‑judge process, even when plaintiffs request only declaratory relief.
Standing doorway clarified: Litigants can establish standing via article XI, section 9 when a proclamation suspends a “law relating to environmental quality” (here, HRS §46‑4 zoning), but bare First Amendment or taxpayer theories will not suffice.

Guidance for Executives (Governor and Mayors)

Document a clear, good‑faith factual record linking the problem to public health, safety, and welfare; cite concrete harms and credible data where available.
Tailor suspensions and rules to the crisis. Target the emergency; avoid across‑the‑board suspensions unrelated to the specified harms.
Prefer existing, expert agencies (e.g., HHFDC) to novel ad hoc structures unless necessity is shown; explain why normal frameworks are inadequate.
Review duration and scope periodically; scale measures as conditions evolve. Serial proclamations are permitted, but permanence by proclamation is disfavored.

Guidance for Litigants and Courts

Use HRS §127A‑27 for all challenges; expect expedited scheduling, narrow stays, and a three‑judge panel.
Plead specific, fact‑based defects under the dual‑check standard: lack of factual nexus to health/safety/welfare, or measures that are overbroad, untailored, or outlast necessity.
Consider article XI, section 9 standing where suspensions touch environmental quality laws (chapters listed in HRS §607‑25(c) are a strong starting point).
Watch for measures that impact fundamental rights; if implicated, heightened scrutiny may apply beyond the base dual‑check analysis.

Legislative and Policy Implications

HRS chapter 127A survives intact. The Court affirms its breadth while articulating judicial guardrails to prevent drift into routine governance by proclamation.
Lawmakers may consider clarifying what kinds of suspensions or rulemaking are most appropriate for recurring, long‑term emergencies to minimize litigation friction.
Environmental quality laws remain a meaningful constraint; their suspension opens a justiciable pathway via environmental‑right standing.

Beyond Housing: A Template for Future Emergencies

The decision’s logic applies to other serial, statewide proclamations (e.g., invasive species, infrastructure hazards, public services). The dual‑check standard provides a consistent rubric: fact‑grounded nexus to health/safety/welfare and proportional, time‑bounded, crisis‑tailored measures. Courts gain a framework to calibrate initial deference that can appropriately wane as emergencies persist.

Complex Concepts Simplified

“Emergency” under HRS §127A‑2: Not limited to sudden disasters. An “occurrence” can be a long‑term condition that escalates to threaten serious harm. Think of a drought that worsens over seasons or housing costs that spike to public health impacts.
“Sole judge” clause: The statute says the Governor is the sole judge of the existence of emergency circumstances, but courts still review whether the declaration and actions comply with statutory limits and constitutional norms.
Rationally related vs. rational basis: “Rationally related” here requires a concrete, articulated factual basis linking the emergency to public health, safety, and welfare. It is more exacting than the highly deferential “rational basis” test used for most legislative classifications.
Reasonable necessity: Proportionality and tailoring. Are the suspensions and rules no broader or longer than needed? Do they target the emergency, or do they sweep in unrelated subjects?
Article XI, section 9 standing: Hawai‘i’s Constitution grants a right to a clean and healthful environment, defined by “laws relating to environmental quality.” If a proclamation suspends such a law (e.g., HRS §46‑4 zoning) and impacts that right, affected individuals can seek declaratory relief.
HRS §127A‑27 three‑judge procedure: A special, expedited path for challenges to emergency proclamations. The Chief Justice assigns a three‑judge panel; short timelines and limited temporary stays apply; and the case gets priority on the docket.
Prospective application: When a court announces a new rule or finds past actions exceeded authority, it can apply the decision only going forward to avoid disrupting settled expectations and completed actions.
AMI (Area Median Income): Affordable housing eligibility often uses AMI thresholds. The Sixth Proclamation tied certification to projects with defined percentages of units affordable to households within specified AMI bands (e.g., 0%–140% of AMI).
“Force of law” for rules: When a statute authorizes an executive to adopt rules with the force and effect of law, regulated parties must comply as they would with a statute. This is not impermissible “lawmaking” so long as the rules stay within statutory bounds.

Conclusion

Nakoa III is a watershed in Hawai‘i’s emergency‑powers jurisprudence. It clarifies that emergencies can be long‑developing conditions, not just sudden disasters; reaffirms judicial review despite “sole judge” language; and establishes a rigorous, yet workable, two‑part standard that insists on facts and proportionality. It secures a procedural gateway—HRS §127A‑27—for future challenges and recognizes environmental‑right standing where proclamations suspend environmental quality laws like HRS §46‑4.

On the merits, the Court drew a principled line: proclamations that fast‑track all housing and centralize sweeping discretion in ad hoc entities exceed emergency powers when the declared crisis is affordable housing. Proclamations that focus narrowly on affordable housing, use expert agencies like HHFDC, and calibrate suspensions to the crisis are valid. The Court avoided disruption by applying its invalidation prospectively and cautioned against “forever” emergencies that encroach on ordinary governance.

The key takeaways:

Emergencies may be long‑term, but executive measures must be evidence‑based, tailored, and time‑bounded.
Courts will test proclamations for both rational nexus to public health, safety, and welfare and reasonable necessity.
Environmental‑right standing is a potent pathway when suspensions touch laws relating to environmental quality.
HRS §127A‑27 governs the procedure for all future challenges.

Going forward, Nakoa III equips all branches of government—and the public—with clearer rules of engagement for the extraordinary exercise of emergency power in Hawai‘i.