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Electronically Filed Supreme Court SCOT-XX-XXXXXXX 13-MAR-2023 08:51 AM Dkt. 343 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
In the Matter of the Application of
HAWAIʻI ELECTRIC LIGHT COMPANY, INC.
For Approval of a Power Purchase Agreement for Renewable Dispatchable Firm Energy and Capacity.
SCOT-XX-XXXXXXX
APPEAL FROM THE PUBLIC UTILITIES COMMISSION (Docket No. 2017-0122)
MARCH 13, 2023
RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.; WITH WILSON, J., ALSO CONCURRING SEPARATELY
OPINION OF THE COURT BY EDDINS, J.
Over ten years ago, energy company Hu Honua had a
brainwave: it could produce renewable energy by burning trees.
The company sought regulatory approval to supply energy to
Hawaiʻi Island using a biomass power plant. Last summer,
approval for that energy deal was denied. Hu Honua appeals the *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
denial, arguing that the Public Utilities Commission (PUC)
misunderstood its mandate and held Hu Honua to an unfair
standard.
We disagree. The PUC understood its public interest-minded
mission. It faithfully followed our remand instructions to
consider the reasonableness of the proposed project’s costs in
light of its greenhouse gas emissions and the project’s impact
on intervenor Life of the Land’s members’ right to a clean and
healthful environment. It stayed true to the language of its
governing statute HRS § 269-6(b) (Supp. 2021) by measuring the
project’s cost and system impact. And it acted properly within
its role as fact-finder when it evaluated Hu Honua by its own
statements and promises and, ultimately, found them
unconvincing.
Finding no error, we affirm the PUC’s decision rejecting
the power purchase agreement between Hu Honua and the Hawaiʻi
Electric Light Company, Inc.
I.
In 2012, Hawaiʻi Electric Light Company, Inc. (HELCO)
approached its regulator, the Public Utilities Commission, about
entering into a power purchase agreement (PPA) with private
company Hu Honua Bioenergy, LLC (Hu Honua). Under the
agreement, Hu Honua would convert an abandoned power plant in
Pepeʻekeo, Hawaiʻi. The plant would produce energy by burning
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woody biomass — mainly locally-grown eucalyptus trees. HELCO
would purchase this energy to service Hawaiʻi Island’s power
grid.
In 2017, the PUC granted HELCO a waiver from the
competitive bidding process and held a contested case hearing
over the PPA. Life of the Land (LOL), a Hawaiʻi-based community
action group dedicated to protecting and preserving the ʻāina,
sought to intervene in the hearing. They were given limited,
rather than full participant, status. The PUC ultimately
approved an Amended PPA between Hu Honua and HELCO for a thirty-
year term. LOL appealed the decision.
In Matter of Hawaiʻi Elec. Light Co., Inc., 145 Hawaiʻi 1,
445 P.3d 673 (2019) (HELCO I), this court vacated the PUC’s
decision. We told the commission to hold a new hearing. Our
remand instructed the PUC to give “LOL an opportunity to
meaningfully address the impacts of approving the Amended PPA on
LOL’s members’ right to a clean and healthful environment, as
defined by HRS Chapter 269.” Id. at 26, 445 P.3d at 698. We
also told the PUC to give “express consideration of GHG
emissions that would result from approving the Amended PPA,
whether the cost of energy under the Amended PPA is reasonable
in light of the potential for GHG emissions, and whether the
terms of the Amended PPA are prudent and in the public interest,
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in light of its potential hidden and long-term consequences.”
Id.
On remand, the PUC devoted its attention to a threshold
issue - whether it should “reissue” to HELCO a waiver from the
competitive bidding process. Matter of Hawaiʻi Elec. Light Co.,
Inc., 149 Hawaiʻi 239, 240, 487 P.3d 708, 709 (2021) (HELCO II).
It decided to deny the waiver. Id. Since HELCO now had no
waiver, the PUC declined to consider the merits of the Amended
PPA. Id.
This time, Hu Honua appealed. Because the competitive
waiver issue was outside the scope of HELCO I’s remand, we
returned the case. We repeated our remand order from HELCO I.
Id. at 242, 487 P.3d at 711.
The PUC held a new contested case hearing on the Amended
PPA in early March 2022. Before the evidentiary hearings began,
Hu Honua brought several motions centered on Act 82, which had
amended HRS § 269-6(b) in 2021. HRS § 269-6(b) is the primary
statute governing the PUC’s evaluation of energy projects like
the Amended PPA. It requires the PUC to engage in “public
interest-minded balancing.” Matter of Maui Elec. Co., Ltd., 150
Hawaiʻi 528, 532, 506 P.3d 192, 196 (2022) (Paeahu).
Hu Honua argued that Act 82 changed things. It said the
PUC could now only consider GHG emissions from fossil fuels.
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Emissions from other sources, such as biomass burned to produce
renewable energy, had to be kept out of the equation.
The commission rejected this approach. It concluded that
Act 82 did not materially alter its statutory obligations under
HRS § 269-6(b).
At the hearings, Hu Honua and HELCO maintained that the
Amended PPA served the public interest. Yet they admitted that
by their own numbers, the proposed project would produce massive
carbon emissions - 8,035,804 metric tons over its 30-year term.
The vast majority of these emissions would come from the plant’s
routine operations. Trucking trees to the plant would emit
carbon. And when the trees burned, “stack emissions” would rise
into the atmosphere.
But Hu Honua made a promise: the project would ultimately
be carbon neutral. Hu Honua intended to offset its emissions by
planting trees. These trees would sequester, by Hu Honua’s
count, 8,066,309 metric tons of carbon. That would zero out the
project’s projected eight million metric ton carbon price tag.
If everything went right, it would even make the project carbon
negative.
Hu Honua hoped to source all of its “feedstock,” that is,
the organic matter it hoped to burn for fuel, from locally-grown
eucalyptus. Its tree supplier, a sister company to Hu Honua,
would initially source eucalyptus from Pāhala, Pāʻauhau, and
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Hāmākua plantations on Hawaiʻi Island. According to Hu Honua,
those lands have enough trees to fuel the project for nine
years. Hu Honua suggested it could help the State by
eradicating “invasive species” on Hawaiʻi Island and burning them
as an additional fuel source. Hu Honua also claimed that
sourcing feedstock outside of the island would only occur in an
emergency.
To meet its sequestration goals, Hu Honua would have to
plant a lot of trees. The company maintained that the bulk of
this tree-planting — expected to sequester 5,882,322 metric tons
of carbon — would occur on leased Hawaiʻi Island land. In Hu
Honua’s sequestration analysis, it included the three
plantations it expected to source feedstock from. The
sequestration analysis assumed that no trees would be cut down
at these plantations between 2017 and 2021. But in testimony,
Hu Honua indicated that harvesting had taken place at the Pāhala
location during this period. The company did not demonstrate
that it was currently replanting trees on this plantation. In
fact, it stated that it does not plan to regrow the Pāhala and
Hāmākua plantations at all.
Hu Honua provided the PUC with a “carbon calculator” that
indicated its estimated emissions and sequestration numbers.
The calculator showed significant increases in sequestration
between 2021 and 2029. This implied an expansion in Hu Honua’s
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current leasing regime. All those extra trees would have to be
planted somewhere.
But Hu Honua did not present evidence that it had leases
secured that extended through the PPA’s 30-year term. Rather,
Hu Honua indicated that it had non-binding “good faith” lease
negotiations that would not be finalized until the PUC approved
the Amended PPA.
Hu Honua promised that if its sequestration performance
fell short of its estimates, it would buy carbon offsets to make
up for the deficit. It pledged up to $450,000 for this effort,
believing that it could buy carbon offsets at the price of $15
per ton. Hu Honua did not identify the sources of the offsets,
only saying that “reputable sources” would sell them. And Hu
Honua did not explain how the PUC would verify the sequestration
produced through these sales.
To supplement Hu Honua’s carbon calculator, HELCO submitted
its own analysis. This analysis measured GHG emissions from Hu
Honua’s project against a baseline without the project. HELCO
estimated that Hu Honua’s project would prevent 1,464,742 metric
tons of emissions from entering the atmosphere. HELCO’s
consultant reached this number by combining an estimate of GHG
emissions that would be avoided because of the project relative
to the baseline, and the project’s estimated lifetime emissions.
HELCO’s analysis took the carbon negative lifetime emissions
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estimate from Hu Honua’s analysis and plugged it into its own.
Though HELCO labeled its analysis independent, it in fact relied
on Hu Honua’s.
On May 23, 2022, the PUC issued Decision and Order No.
38395. It declined to approve the Amended PPA.
In the order, the PUC found that the project would produce
massive GHG emissions, and that Hu Honua’s promise of carbon
neutrality rested on speculative, uncertain assumptions. The
commission expressed serious doubts that Hu Honua could actually
live up to its sequestration estimates. It pointed out that Hu
Honua had no firm plans for leasing land to plant trees. Using
the carbon calculator provided by Hu Honua, the commission found
that even changes as small as one-percent in Hu Honua’s
emissions and sequestration estimates would make the project a
net carbon emitter. The commission calculated that the back-up
money Hu Honua pledged, even if carbon offsets were available at
the rate it expected, would only buy 30,000 metric tons of
carbon offsets — less than one sixth of the carbon the project
(per Hu Honua’s own estimates) would emit annually.
The PUC was particularly troubled by the frontloading of
GHG emissions in the project. While Hu Honua pledged to be
carbon neutral on an annual basis by the end of 2035, the
commission determined (again based on Hu Honua’s numbers) that
the overall impact of the project would not be carbon neutral
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until 2047, two years after Hawaiʻi’s 2045 zero emissions target
came and went. For the first 25 years of the project, Hu Honua
would be a significant net emitter. If Hu Honua did not meet
its sequestration commitments, the PUC feared that the damage to
the atmosphere could not be easily undone.
The PUC also found that the Amended PPA would significantly
increase costs for rate-payers. Six years into the project, the
fuel price was set to spike 15%, for no discernable reason.
That spike - in combination with other pricing terms and
adjustments for inflation - meant that the cost would
continually rise. Overall, the PUC found that the project would
increase the typical consumer bill by an average of $10.97 a
month throughout the full 30-year term. The PUC deemed this a
significant bill impact. HELCO stated that there were no
realistic modeling assumptions under which the project “could
produce a net savings to the system or customer.” Based on the
project’s high GHG emissions, the PUC did not consider these
higher costs to consumers reasonable.
The PUC had another big time concern. The commission found
that not only would the project fail to accelerate the
retirement of fossil-fuel, it would displace other, more
environmentally friendly renewable resources. Hu Honua said
that its plant would only displace the fossil fuel-based Keāhole
power plant. However, HELCO, which actually controls energy
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dispatch, testified that this claim was “unrealistic” and
“contrary to [HELCO’s] practices” and “actual operational
conditions.” HELCO said that it would be “impossible” for the
project to avoid displacing other renewable resources. The
Consumer Advocate, a statutorily-mandated party to the
proceedings, estimated that almost 60% of Hu Honua’s generation
would replace renewable energy generation. Here, the commission
credited the testimony of HELCO and the Consumer Advocate over
Hu Honua’s. The PUC also credited HELCO’s testimony that the Hu
Honua project filled no pressing need in its power grid.
Summing up, the PUC found that the proposed project would
emit substantially more carbon than it sequestered for at least
the first 25 years of operation and raise ratepayer prices for
the full term. And the PUC found Hu Honua’s promise of eventual
carbon neutrality speculative at best. Based on these findings,
the PUC concluded that the Amended PPA was not in the public
interest. It rejected the agreement.
Hu Honua moved the PUC to reconsider its Decision and
Order. The PUC denied the motion in Decision and Order No.
38443.
Hu Honua appealed. It argues that (1) the PUC’s order
exceeded the scope of the HELCO I remand by considering energy
prices, (2) the PUC improperly applied HRS § 269-6(b) by not
limiting its comparison of the project to only fossil fuel
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alternatives, and (3) violated Hu Honua’s due process rights by
finding facts not in the record, applying a wrong evidentiary
standard, and subjecting Hu Honua to a carbon neutrality
requirement.
II.
A.
We begin with the scope of remand. Hu Honua characterizes
the HELCO I remand as confining the PUC to the “one discrete
issue” of GHG emissions. Considerations of other key issues
were “off-limits.”
Where, exactly, Hu Honua locates this limitation remains a
mystery. In HELCO I, we vacated the PUC’s order and remanded
for a new hearing. The PUC had to give “LOL an opportunity to
meaningfully address the impacts of approving the Amended PPA on
LOL’s members’ right to a clean and healthful environment, as
defined by HRS Chapter 269.” HELCO I, 145 Hawaiʻi at 26, 445
P.3d at 698. We said the hearing must include “express
consideration of GHG emissions that would result from approving
the Amended PPA, whether the cost of energy under the Amended
PPA is reasonable in light of the potential for GHG emissions,
and whether the terms of the Amended PPA are prudent and in the
public interest, in light of its potential hidden and long-term
consequences.” Id.
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Then, in HELCO II, this court explicitly considered the
scope of the HELCO I remand. We reminded the parties that they
were “fixed in the same position they were in following HELCO I”
and repeated our remand instructions verbatim. HELCO II, 149
Hawaiʻi at 242, 487 P.3d at 711.
Hu Honua seems to feel that the PUC’s consideration of
pricing is unfair because back in its 2017 Decision & Order the
PUC found the pricing reasonable. But that 2017 Decision &
Order was precisely what HELCO I vacated. HELCO I, 145 Hawaiʻi
at 28, 445 P.3d at 700. Based on the straightforward language
of the remand order, the PUC was not only at liberty to consider
pricing, it was required to consider the reasonability of the
project’s pricing in light of its GHG emissions. Hu Honua’s
insistence that no specific language directs further
consideration of energy costs is difficult to understand. Our
roadmap was a simple one, and we gave it twice.
Even setting the remand language aside, the PUC has a duty
to act in the public interest. See Haw. Const. art. XI, § 1;
HRS § 269-145.5(b) (2020) (“In advancing the public interest,
the commission shall balance technical, economic, environmental,
and cultural considerations . . .”); Paeahu, 150 Hawaiʻi at 534,
506 P.3d at 198 (principle that PUC must act in the public
interest is “incorporated throughout HRS chapter 269”).
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Protecting rate-payers by considering pricing impacts follows
from that public interest obligation.
B.
Hu Honua’s interpretation of HRS § 269-6(b) is equally
strained. “HRS Chapter 269 is a law relating to environmental
quality that defines the right to a clean and healthful
environment under article XI, section 9 by providing that
express consideration be given to reduction of greenhouse gas
emissions in the decision-making of the Commission.” In re
Application of Maui Elec. Co., Ltd., 141 Hawaiʻi 249, 264, 408
P.3d 1, 16 (2017) (MECO).
HRS § 269-6(b) sets out specific factors the PUC must
consider to determine whether the costs of a proposed energy
project are reasonable. These include (1) price volatility; (2)
export of funds for fuel imports; (3) fuel supply reliability
risk; and (4) greenhouse gas emissions. The PUC then subjects
these factors to “public interest-minded balancing.” Paeahu,
150 Hawaiʻi at 532, 506 P.3d at 196.
Hu Honua maintains that when applying these factors to a
renewable energy project, the “only permissible” comparison for
the PUC to draw is with fossil-fuel plants. Considering a
proposed renewable energy project’s relative impacts or the
displacement of other renewable energy projects is, apparently,
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out-of-bounds. If Hu Honua is right, the only relevant question
before the PUC was: is burning trees better than burning coal?
Neither the language of HRS § 269-6(b) nor the legislative
intent behind it supports this blinkered approach. By drawing a
hard line between fossil fuel and renewable energy, Hu Honua
elides a crucial fact — producing biofuel, unlike producing
other kinds of renewable energy such as solar or wind, emits
high quantities of GHG emissions. If the PUC couldn’t consider
Hu Honua’s relative impacts and the likelihood that it would
supplant other renewable projects, it would be forced to treat a
project expected to emit millions of metric tons of carbon as no
different from a project expected to emit almost no carbon,
merely because both draw on renewable energy sources.
But the legislature intended the PUC to consider
“potentially harmful climate change due to the release of
harmful greenhouse gases.” MECO, 141 Hawaiʻi at 263, 408 P.3d at
15. We do not lightly assume that the legislature would
sabotage its climate goals by limiting the PUC to artificial and
unhelpful analyses.
Further, HRS § 269-6 cannot be read in isolation from HRS
§ 225P-5 (Supp. 2021), another law relating to environmental
quality, which sets a state policy of achieving carbon
neutrality “as quickly as practicable, but no later than 2045.”
HRS § 225P-5 mandates that we reduce emissions now, before the
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damage done to the environment is irreversible — before action
becomes impossible for future generations. Hu Honua’s
constrained reading of HRS § 269-6(b) does not reflect the
legislature’s urgency.
Still, Hu Honua insists that Act 82, which recently amended
HRS § 269-6(b), alters this analysis. It does not.
Act 82’s primary purpose was to exempt minor actions from
the HRS § 269-6(b) analysis and to give the PUC discretion to
determine on a case-by-case basis whether proceedings involving
water, wastewater, and telecommunications projects require the
HRS § 269-6(b) analysis. The amendment also made a number of
small, non-substantive changes. Most relevantly, it arranged
the four factors, previously stated in a sentence, into a
numbered list. We don’t see how this typographical change in
any way touches the substance of the statute.
Hu Honua also invokes the act’s legislative history.
During the law-making process, language explicitly including
biomass was added and then removed from the amendment. Hu Honua
takes this as evincing a legislative intent to entirely exempt
biomass emissions from consideration. But, taken in context,
the legislature’s actions indicate its desire to preserve the
statute’s original language and interpretation. The legislature
was acting after MECO and HELCO I, cases that made clear HRS
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§ 269-6(b) applied to emissions from biomass plants. Adding
language to that effect would have been superfluous.
Also, Act 82’s main purpose was to exempt certain projects
from the PUC’s involved GHG analysis. Had the legislature truly
intended to exempt biomass emissions, it would have listed them
with the other exemptions.
HRS Chapter 269 defines the Hawaiʻi Constitution’s article
XI, section 9 right to a clean and healthful environment, which
encompasses the right to a life-sustaining climate system.
Paeahu, 150 Hawaiʻi at 538 n.15, 506 P.3d at 202 n.15.
Commanding a public agency charged with protecting the right to
a life-sustaining climate system to disregard GHG emissions from
a particular type of fuel source would undermine HRS Chapter
269. We don’t think the legislature intended to go there, much
less through a minor amendment bill.
C.
Lastly, Hu Honua asserts that the PUC violated its due
process rights by finding its own facts, applying a higher
evidentiary standard, and creating a carbon neutrality
First, the PUC’s findings do not indicate that it tried to
become its own “expert.” Compiling data provided by Hu Honua’s
expert into a table does not produce new facts, nor does
weighing competing evidence and finding, for example, that
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HELCO’s projections were more credible than Hu Honua’s. Under
HRS § 269-92 (2020), electric companies must reach full carbon
neutrality by 2045. By calculating that Hu Honua’s project
would reach cumulative carbon neutrality in 2047, as opposed to
annual carbon neutrality in 2035, the PUC hewed to its statutory
mandate.
Nor does the PUC’s critical evaluation of the evidence Hu
Honua presented equate to applying a higher evidentiary
standard. Rather, it demonstrates a more mundane phenomenon: a
fact-finder finding one side’s facts unpersuasive.
Hu Honua stresses that it and HELCO were the only ones to
introduce expert evidence at the proceeding. If only one side
employs an expert, the argument seems to run, that expert must
be believed. But Hu Honua misunderstands its evidentiary
burden. Hu Honua had to persuade the PUC, not the other way
around.
Further, treating one side’s ability to retain an expert as
decisive in proceedings would unacceptably interfere with the
due process rights of parties who, while not able to field
competing expert witnesses, may have valid attacks to make on
the credibility or persuasive force of expert evidence.
Third, Hu Honua argues that the PUC applied a novel and
inappropriate standard: whether the project would achieve carbon
neutrality. But it was Hu Honua, not the PUC, who introduced
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the idea of carbon neutrality into the proceedings. In fact, Hu
Honua went further – it pledged to be carbon negative. Carbon
neutrality was key to Hu Honua’s pitch, going directly to the
reasonability of its costs in light of its GHG emissions.
As HRS § 269-9 (2020) recognizes, higher energy costs may
be justified when the energy source avoids the harmful impacts
of fossil fuels. But biomass and fossil fuel sources share one
important defect — high GHG emissions. Hu Honua appears to have
recognized that its project would not be found reasonable by the
PUC if it offered both high costs and high emissions. So it
argued that its emissions, once offset by tree planting, would
amount to zero. How convincing the PUC found this carbon claim
is an issue of fact, not the creation of a new legal rule.
Even if the PUC adopted carbon neutrality as a standard, it
is not so clear that the agency would have erred.
We have said that an agency “must perform its statutory
function in a manner that fulfills the State’s affirmative
constitutional obligations,” Paeahu, 150 Hawaiʻi at 538, 506 P.3d
at 202, and that “[a]rticle XI, section 9’s ‘clean and healthful
environment’ right as defined by HRS chapter 269 subsumes a
right to a life-sustaining climate system,” id. at 538 n.15, 506
P.3d at 202 n.15. The right to a life-sustaining climate system
is not just affirmative; it is constantly evolving.
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The people of Hawaiʻi have declared “a climate emergency.”
S.C.R. 44, S.D. 1, H.D. 1, 31st Leg., Reg. Sess. (2021). Hawaiʻi
faces immediate threats to our cultural and economic survival:
sea level rise, eroding the coast and flooding the land; ocean
warming and acidification, bleaching coral reefs and devastating
marine life; more frequent and more extreme droughts and storms.
Id. For the human race as a whole, the threat is no less
existential.
With each year, the impacts of climate change amplify and
the chances to mitigate dwindle. “The Closing Window: Climate
crisis calls for rapid transformation of societies,” Emissions
Gap Report 2022, https://www.unep.org/resources/emissions-gap-
report-2022 [https://perma.cc/6JAR-RFZE]. “A stepwise approach
is no longer an option.” Id. at page xv.
The reality is that yesterday’s good enough has become
today’s unacceptable. The PUC was under no obligation to
evaluate an energy project conceived of in 2012 the same way in
2022. Indeed, doing so would have betrayed its constitutional
duty.
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Because the PUC’s actions aligned with its statutory and
constitutional obligations, we affirm PUC Order Nos. 38395 and
Bruce D. Voss /s/ Mark E. Recktenwald (John D. Ferry III, Dean T. /s/ Paula A. Nakayama Yamamoto, Wil K. Yamamoto, and Jesse J. Smith on the briefs) /s/ Sabrina S. McKenna for Hu Honua Bioenergy, LLC /s/ Michael D. Wilson Joseph A. Stewart /s/ Todd W. Eddins (Marissa L.L. Owens, David M. Louie, Bruce A. Nakamura, and Aaron R. Mun on the briefs) for Hawaiʻi Electric Light Company, Inc.
Edward M. Knox (Scott D. Boone on the briefs) for Division of Consumer Advocacy Department of Commerce and Consumer Affairs
Mark J. Kaetsu (Caroline C. Ishida on the briefs) for Public Utilities Commission
Chase H. Livingston for Life of the Land
Sandra-Ann Y.H. Wong for Tawhiri Power LLC