Hawaiʻi Supreme Court issues opinion on governor’s use of emergency powers in affordable housing crisis

The Hawai‘i Supreme Court on Thursday issued a decision on Gov. Josh Green’s use of emergency powers to mitigate the state’s affordable housing crisis.

Nakoa III v. Governor of the State of Hawai‘i sought to invalidate the governor’s Affordable Housing Emergency Proclamations. The Supreme Court held that the Sixth through Fifteenth emergency proclamations related to affordable housing issued by the governor are valid.

However, the court opined, “because the first five proclamations’ certification process expedited all housing development – not just  affordable housing projects,” those measures “were not reasonably necessary  to address the affordable housing emergency.”

Both sides declared positive progress with Gov. Green saying: “More affordable housing is necessary to reduce Hawai‘i’s cost of living. My administration has been working hard to break down obstacles that can impede affordable housing development. The Supreme Court’s decision is another step forward as we continue this crucial work for the people of Hawaiʻi.”

“This is a victory for everyone in Hawaiʻi,” said Plaintiffs’ attorney Lance D. Collins. “It ensures that emergency powers are exercised responsibly and that urgent issues, like affordable housing, are addressed without just handing over the government to private developers,” said Plaintiff Leonard “Junya” Nakoa.

Green issued the first in a series of 60-day Emergency Proclamations regarding affordable housing on July 17, 2023. These emergency proclamations were issued under emergency powers delegated to the governor in Hawaiʻi Revised Statutes chapter 127A. The proclamations sought to address the state’s affordable housing shortage primarily by expediting and removing obstacles to the construction of affordable housing projects.

Because the first five proclamations had already expired, the Court declined to retroactively void them. The most recent proclamation, the Fifteenth Proclamation, expires on Sept. 26, 2025.

The court noted that: “Because emergency proclamations terminate automatically after 60 days, and then must be replaced by a new proclamation to continue the state of emergency, these proclamations are difficult to challenge.”

The Plaintiffs brought a lawsuit challenging the proclamations, arguing that they exceeded the governor’s emergency authority, violated separation of powers principles, and violated article I, section 15 of the Hawai‘i Constitution. A circuit court on Maui dismissed the Plaintiffs’ claims.

On appeal, the Hawai‘i Supreme Court upheld the housing proclamations. In making its decision, the court rejected the claims that the proclamations exceeded the Governor’s powers and re-affirmed the principle that “the legislature has granted the governor and mayors the discretion to respond quickly to emergencies.” Among other things, the Supreme Court emphasized the lack of affordable housing’s negative impact on the high cost of living in Hawaiʻi, Native Hawaiians, kūpuna, and “the common sense link between unaffordable housing and elevated stress, physical and mental health conditions.”

Green was represented by Deputy Solicitor General Ewan C. Rayner and Deputy Attorneys General Linda L.W. Chow, Klemen Urbanc, and Chase S.L. Suzumoto. Rayner, who argued the case in the Hawai‘i Supreme Court, praised the decision.

“Today’s decision is an affirmation of the authority given the governor to respond quickly to emergencies that threaten the health, safety and welfare of Hawai‘i residents,” said Rayner. “The decision recognizes the governor’s authority to recognize and declare such emergencies, and to take reasonable measures in response.”

Meanwhile, attorneys for the plaintiffs said the Court ruled that while Hawaiʻi’s affordable housing shortage qualifies as an emergency under the law, the governor’s first five housing proclamations went beyond his emergency powers. “Those early proclamations opened the door for virtually all housing development, not just affordable housing, and suspended more than two dozen laws, including key safeguards such as environmental review, procurement rules, and zoning protections.”

In a news release, attorneys for the plaintiffs noted: “Because of this lawsuit, the governor narrowed later proclamations to focus directly on affordable housing – and the Court upheld those narrower measures as valid.”

“This ruling keeps the spotlight on affordable housing, where it belongs, and ensures public power is used to meet community needs,” said Plaintiffs’ attorney Ryan Hurley.

The Plaintiffs were also represented by attorneys Bianca Isaki and Linda Nye.

Plaintiffs say the decision highlights the importance of balancing swift government action with fairness, transparency, and environmental protections. “It affirms that even in emergencies, Hawaiʻi’s people have the right to hold their leaders accountable. And as long as the courts remain open, it is ultimately the judiciary that decides what the law is.”

A copy of the decision is available here:
https://www.courts.state.hi.us/wp-content/uploads/2025/09/SCAP-24-0000401.pdf

*Editor’s note: This story was updated to correct details related to the court’s decision and more clearly reflect the entirety of the court’s decision.