Hawaiʻi Supreme Court Defines Limits of Governor’s Emergency Powers in Affordable Housing Case

On September 11, 2025, the Hawaiʻi Supreme Court issued a significant opinion in Nakoa v. Governor of the State of Hawaiʻi, SCAP-24-0000401, clarifying the scope of gubernatorial emergency powers under Hawaiʻi’s emergency management statute, HRS chapter 127A. The case arose from challenges to Governor Josh Green’s series of emergency proclamations aimed at expediting affordable housing. 

Background 

Beginning in July 2023, Governor Green declared an “emergency” based on the state’s longstanding affordable housing shortage. Through consecutive 60-day proclamations—now numbering fifteen—the Governor suspended a wide range of state and county laws, including statutes on environmental review, historic preservation, zoning, and procurement. Early proclamations also established a “Build Beyond Barriers Working Group” with authority to certify housing projects for expedited approval. 

Community members challenged these actions, arguing that lack of affordable housing is not the type of “emergency” envisioned by the statute, and that the proclamations unlawfully rewrote or suspended laws reserved to the Legislature. 

The Court’s Framework 

The Court rejected a narrow reading of “emergency.” Longstanding problems, the Court held, can reach a crisis point that qualifies as an emergency under HRS chapter 127A. At the same time, judicial review remains available even though the statute designates the governor as the “sole judge” of emergencies. 

Most importantly, the Court adopted a dual test for reviewing gubernatorial emergency actions: 

1. The proclamation must be rationally related to public health, safety, and welfare; and 
2. The measures taken must be reasonably necessary to address the emergency. 

This test is more demanding than ordinary “rational basis” review of legislation, requiring a factual foundation and proportionality between the emergency declared and the government’s response. 

Application to the Housing Proclamations 

Applying this framework, the Court drew a sharp line between the early and later proclamations: 

• First through Fifth Proclamations (2023–early 2024): Invalid in scope. Although the housing crisis rationally related to health, safety, and welfare, the creation of a new working group and the opening of fast-track certification to all housing projects—not just affordable housing—was not reasonably necessary. The Court declined to retroactively void projects already approved, but emphasized these actions exceeded statutory authority. 
• Sixth through Fifteenth Proclamations (Feb. 2024–present): Valid. By narrowing eligibility to affordable housing and transferring decision-making back to the Hawaiʻi Housing Finance and Development Corporation, these proclamations were reasonably tailored to the emergency. The most recent version, the Fourteenth Proclamation (July 2025), expires September 26, 2025. The Court also rejected claims that the proclamations violated separation of powers or Hawaiʻi’s constitutional suspension of laws clause, holding that HRS chapter 127A lawfully delegates authority to suspend laws and adopt rules during emergencies. 

Key Takeaways 

• Judicial Review Standard Set: Hawaiʻi courts will now assess emergency proclamations under a dual test—rational relation and reasonable necessity. 
• Limits on Emergency Powers: Broad suspensions of laws and new governance structures untethered to the specific emergency will not be upheld. 
• Affordable Housing as Emergency: The Court recognized that chronic social issues, if severe enough, can constitute “emergencies,” but responses must still be proportional. 
• Prospective Guidance: While early proclamations exceeded authority, they are not retroactively invalidated. The ruling provides prospective guidance for governors, mayors, and litigants. 

Implications 

For land use practitioners, developers, and agencies, this decision means that emergency proclamations can temporarily override zoning, environmental, and procurement laws, but only if narrowly tailored to the emergency at hand. Affordable housing qualifies as such an emergency, but the Court has signaled that executive responses must be carefully limited to avoid becoming substitutes for ordinary legislation.