Wednesday, August 21, 2019
Hawai'i Free Press

Current Articles | Archives

Thursday, May 16, 2019
HAWSCT: PUC Must Consider Whether Renewable Biofuel Energy Plant Might Impact Property Right To Clean And Healthful Environment
By Robert Thomas @ 6:53 PM :: 1278 Views :: Hawaii County , Energy, Environment

HAWSCT: PUC Must Consider Whether Renewable Biofuel Energy Plant Might Impact Property Right To Clean And Healthful Environment

by Robert Thomas, InverseCondemnation, May 14, 2019

On one hand, there's nothing really new in the Hawaii Supreme Court's opinion in In re Hawaii Electric Light Co., No. SCOT-17-630 (May 10, 2019), because the court has previously told us the answers to each the component questions in the case:

  • On the ultimate question posed in the title, must the PUC consider whether a power purchase agreement for a Big Island "woody biomass" electric plant might have an effect on a clean and healthy environment by affecting the utility's willingness to purchase electricity generated by more "pure" means such as wind and solar: you don't need to read the 66 page unanimous opinion to know the answer: of course it has to. The statute mostly says so, and you didn't need a deep understanding of the other details in the case to be able to predict about how this one was going to end up, merely the court's history in these kind of cases. Especially where the court was asked to make a procedural ruling, and not one on the merits. 
  • The court has already repeatedly told us that an agency must allow third party participation in the decision-making process -- including costly and time-consuming administrative trials ("contested cases" in Hawaii's legal parlance) -- if a statute or rule says the agency must hold some kind of public hearing or if the third party can even remotely claim it has a property interest that possibly could be affected by the agency's decision. Here, it was enough that the energy plant might possibly have some environmental impact (yes, we're being that obtuse on purpose), and that the environment "concerns" the intervenors.  
  • The court has already held that the provision in the Hawaii Constitution which sets out the right of everyone to a clean and healthful environment is such a property right, entitling anyone with standing -- an exceedingly low hurdle to clear under Hawaii law -- to procedural due process.   
  • The court had also already repeatedly held that an appeal of the agency action to the courts under the Administrative Procedures Act may be taken by any party dissatisfied by the result of an agency hearing, or who is not given an agency hearing. (One thing new in this case: the intervenor doesn't even have to request a contested case, merely intervene. See slip op. at 41-43.)

If those points are all you want to know, there's no need for a deeper dive into the opinion.

But to us, what is new and interesting about this one is the court's conclusion that the property right to a clean and healthful environment not only requires the PUC to conduct an administrative trial, but that as part of the trial, the agency must expressly consider "the reduction of [greenhouse gas] emissions,' which the intervenor third-party Life of the Land (unfortunately abbreviated to "LOL" by the court) asserted were "hidden and long-term costs of the [proposed] facility." Slip op. at 34. It wasn't enough that the PUC determined that the proposed renewable biomass facility would lessen reliance on fossil fuels, it had to expressly consider the argument and respond to it:  

In its findings and conclusions, the PUC found that Hu Honua’s biomass facility may displace fossil fuel generation resources and accelerate the retirement of fossil fuel plants, and noted that its decision to approve the Amended PPA was based on “factors such as the State’s need to limit its dependence on fossil fuels and mitigate against volatility in oil pricing.” These findings and conclusions do not constitute “express consideration” of the reduction of GHG emissions, as provided for under HRS § 269-6(b).

Slip op. at 52-53. 

That sounds remarkably similar to the "burden is on the applicant to disprove all possible impacts" standard which the court has imposed under the public water trust. In short, it's the precautionary principle writ large: when there's any doubt raised, its never a mistake for the agency to deny the requested action. If this impacts the delivery or price of electricity on the Big Island, then so be it; thank the Hawaii Legislature for amending the PUC's statute in 2011 to require the agency to "consider the hidden and long-term costs of reliance on fossil fuels[.]" Slip op. at 50. 

PDF: In re Hawaii Electric Light...


TEXT "follow HawaiiFreePress" to 40404

Register to Vote


808 Silent Majority

808 State Update AM940


ACA Signups Hawaii


Affordable Hawaii Coalition


Alliance Defending Freedom

Aloha Conservative Alliance

Aloha Life Advocates

Aloha Pregnancy Care Center

American Council of Trustees and Alumni

American Mothers of Hawaii



Antonio Gramsci Reading List

A Place for Women in Waipio

Audit The Rail

Ballotpedia Hawaii

Better Hawaii 

Blaisdell Memorial Project

Broken Trust

CAFR Hawaii

Castaway Conservative

Children's Alliance Hawaii

Children's Rights Institute

Christian Homeschoolers of Hawaii

Citizens for Recall

Cliff Slater's Second Opinion

Coffee Break

Conservative Forum for Hawaii

CSIS Pacific Forum

DAR Hawaii

DVids Hawaii

E Hana Kakou Kelii Akina

E Māua Ola i Moku o Keawe

Farmers For Choice Hawaii


Fix Oahu!

Follow the Money Hawaii

Frank in Hawaii

Front Page Magazine

Frontline: The Fixers

Genetic Literacy Project

Get Off Your Butts!

God, Freedom, America

Grassroot Institute

Hawaii Aganst Assisted Suicide

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii Coalition Against Legalized Gambling

Hawaii ConCon Info

Hawaii Credit Union Watch

Hawaii Crime Victims' Rights

Hawaii Crop Improvement Association

Hawaii Debt Clock

Hawaii Defending Marriage

Hawaii Defense Foundation

Hawaii Families for Educational Choice

Hawaii Family Advocates

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federalist Society

Hawaii Federation of Republican Women

Hawaii Firearm Community

Hawaii Fishermen's Alliance

Hawaii Future Project

Hawaii Gathering of Eagles

Hawaii History Blog

Hawaii Homeschool Association

Hawaii Jihadi Trial

Hawaii March for Life

Hawaii Meth Project

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Right to Life -- Big Island

Hawaii Right to Life -- Oahu

Hawaii Shield Law Coalition

Hawaii Shippers Council

Hawaii Smokers Alliance

Hawaii State Data Lab

Hawaii Together

Heritage Foundation

HI Coalition Against Legalized Gambling



Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Homeless Crisis

Honolulu Navy League

Honolulu Traffic

Horns of Jericho Blog

House Minority Blog

House Republican Caucus YouTube


Hump Day Report

I Vote Hawaii

If Hawaii News

Imua TMT

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

Investigative Project on Terrorism

Iowa Meets Maui

Jackson v Abercrombie

Jihad Watch

Judgepedia Hawaii

July 4 in Hawaii

Kahle v New Hope

Kakaako Cares

Kau TEA Party

Kauai Co GOP

Keep Hawaii's Heroes


Land and Power in Hawaii

Legislative Committee Analysis Tool

Lessons in Firearm Education

Lingle Years

Malulani Foundation

Managed Care Matters -- Hawaii

Malama Pregnancy Center of Maui

Mauna Kea Recreational Users Group

Middle East Forum--The Legal Project

Mililani Conservatives for Change

Military Home Educators' Network Oahu

Missile Defense Advocacy

MIS Veterans Hawaii

Muslim Brotherhood in America

NAMI Hawaii


National Christian Foundation Hawaii

National Parents Org Hawaii

National Wind Watch

New Zeal

NFIB Hawaii News

No GMO Means No Aloha

Northwest Economic Policy Seminar

Not Dead Yet, Hawaii

Now What I Really Think

NRA-ILA Hawaii

Oahu Alternative Transport

ObamaCare Abortion Hawaii


OHA Lies

Opt Out Today

Pacific Aviation Museum

Patients Rights Council Hawaii

PEACE Hawaii

People vs Machine

Pritchett Cartoons 

Pro-GMO Hawaii


Rental by Owner Awareness Assn

Republican Party -- Hawaii State

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

Robotics Organizing Committee

Salvage The Rail

Save the Plastic Bag

School Choice in Hawaii

SIFE Remington

SIFE W. Oahu 

Sink the Jones Act

Smart About Marijuana--Hawaii

St Marianne Cope

State Budget Solutions Hawaii

State Policy Network

Statehood for Guam

Tax Foundation of Hawaii

The Harriet Tubman Agenda

The Long War Journal

The Real Hanabusa

Time Out Honolulu

Truth About Trade & Technology - Hawaii

UCC Truths

Union Members Know Your Rights

US Tax Foundation Hawaii Info

Valor in the Pacific

VAREP Honolulu

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii