In re The Application Of The Gas Company, LLC dba Hawaii Gas For Approval Of Rate Increases And Revised Rate Schedules And Rules.

• Court: Hawaii Supreme Court
• Decided: June 9, 2020
• Docket: SCOT-19-0000044
• Status: Published

Opinion

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Electronically Filed Supreme Court SCOT-XX-XXXXXXX 09-JUN-2020 08:43 AM

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---oOo--- ________________________________________________________________

IN THE MATTER OF THE APPLICATION OF THE GAS COMPANY, LLC dba HAWAII GAS FOR APPROVAL OF RATE INCREASES AND REVISED RATE SCHEDULES AND RULES ________________________________________________________________

APPEAL FROM THE PUBLIC UTILITIES COMMISSION (Agency Appeal)

SCOT-XX-XXXXXXX

JUNE 9, 2020

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ.1

OPINION OF THE COURT BY McKENNA, J.

I. Introduction In this appeal, Life of the Land and Hui Aloha ʻĀina o Ka

Lei Maile Aliʻi (“LOL” and “KLM,” respectively, or sometimes

1 Pursuant to Hawaiʻi Revised Statutes (“HRS”) § 602-10 (2016), titled “Full court; oral argument; substitute justices,” the parties before this court “shall be entitled to consideration by a full court.” Further, under that statute, “Oral argument shall be before a full court. . . .” “After oral argument of a case,” however, “if a vacancy arises or if for any other reason a justice is unable to continue on the case, the case may be decided or disposed of upon the concurrence of any three members of the court without filling the vacancy or the place of such justice.” The full court (consisting of Chief Justice Recktenwald and Justices Nakayama, McKenna, Pollack, and Wilson) heard oral argument on this case on January 23, 2020. After oral argument, Justice Wilson recused himself. Therefore, this case is hereby decided by Chief Justice Recktenwald and Justices Nakayama, McKenna, and Pollack. ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER **

collectively “Appellants”) challenge whether the Public

Utilities Commission (“PUC”) fulfilled its statutory and

constitutional obligations in reviewing an application for a

rate increase submitted by Hawaiʻi Gas (“HG”). HG sought to pass

on to its customers the costs of its two recently established

liquid natural gas (“LNG”) projects. HG began importing LNG

from the mainland to lessen its reliance on synthetic natural

gas (“SNG”) manufactured in Hawaiʻi. LNG displaces a portion of

SNG in HG’s operations.

Concerned about LNG’s effects on climate change, as well as

climate change’s impact upon native Hawaiians, LOL and KLM moved

to intervene in HG’s rate case. The PUC denied them intervenor

status but allowed them to participate in the proceedings on a

limited basis. Specifically, LOL and KLM were allowed to

address only “whether the [PUC] should disallow as unreasonable

[HG’s] LNG costs due to the effects of [HG’s] use of imported

LNG on the State’s reliance on fossil fuels2 and greenhouse gas

emissions” (“GHG emissions”)3. The PUC expressly considered the

2 Under HRS § 243-3.5 (2017), “fossil fuel” is defined as “a hydrocarbon deposit, such as coal, natural gas, or liquefied natural gas, derived from the accumulated remains of ancient plants or animals and used for fuel; provided that the term specifically does not include petroleum product.”

3 The regulations implementing HRS Chapter 342B (2010) (titled “Air Pollution Control”), contain the following definition of “Greenhouse gases”: “the air pollutant defined as the aggregate group of six greenhouse gases: carbon dioxide, nitrous oxide, methane, hydrofluorocarbons, perflu[o]rocarbons, and sulfur hexafluoride.” Hawai̒i Administrative Rules (“HAR”) § 11-60.1-1 (2014).

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following issue to be “outside the scope of this rate

proceeding”: “The participants’ asserted interest in a clean

and healthful environment beyond the State’s borders, given the

Hawaii Constitution’s limited application and scope to a clean

and healthful environment within the State’s borders.”

Ultimately, the PUC approved HG’s rate increase in Decision

and Order No. 35969. It adopted HG’s representation that the

two LNG projects would decrease GHG emissions in-state. LOL and

KLM appeal, raising statutory and constitutional challenges to

the PUC’s Decision and Order. HG continues to challenge whether

LOL and KLM have standing to bring this appeal.4

In summary, the issues raised in this appeal, and this

court’s resolution of each issue, as appropriate, are as

follows:

A. Which standing test applies in this appeal, and whether the Appellants have standing under the applicable test.

Resolution: The two-part test for standing applies, in which the Appellants must show that they are “persons aggrieved” who “participated” in the contested case. Appellants meet this test, because they demonstrated their members’ right to a clean and healthful environment was specially, personally and adversely affected by the PUC’s Decision and Order, and they were participants in HG’s contested case.

4 HG had raised standing in an earlier motion to dismiss. This court denied the motion to dismiss without prejudice to re-visiting the issue upon consideration of the merits of the appeal.

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B. Whether the PUC fulfilled its obligations under HRS § 269-6(b) (2007 & Supp. 2011), which provides the following:

The public utilities commission shall consider the need to reduce the State’s reliance on fossil fuels through energy efficiency and increased renewable energy generation in exercising its authority and duties under this chapter. In making determinations of the reasonableness of the costs of utility system capital improvements and operations, the commission shall explicitly consider, quantitatively or qualitatively, the effect of the State’s reliance on fossil fuels on price volatility, export of funds for fuel imports, fuel supply reliability risk, and greenhouse gas emissions. The commission may determine that short-term costs or direct costs that are higher than alternatives relying more heavily on fossil fuels are reasonable, considering the impacts resulting from the use of fossil fuels.

Resolution: The PUC did not fulfill its obligations under HRS § 269-6(b) because its Decision and Order simply reiterated HG’s representations that its LNG projects would decrease GHG emissions. Further, the PUC’s geographic limitation demonstrated that the PUC did not intend to consider GHG emissions from production, development, and transportation of LNG occurring outside of the state. Without that information, however, the PUC could not have explicitly considered the hidden and long- term costs of the state’s reliance on fossil fuels.

C. Whether the PUC violated the Appellants’ due process rights by not affording the Appellants a meaningful opportunity to be heard concerning GHG emissions.

Resolution: The PUC violated the Appellants’ due process rights because the substantive limitations on their participation in this rate case rendered meaningless any opportunity to be heard on the GHG emissions issue.

D. Whether the PUC abused its discretion in developing a policy on measuring GHG emissions through adjudication rather than rule-making.

Resolution: The PUC did not abuse its discretion in proceeding through adjudication

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in this case. The PUC did not attempt to bypass a rule, amended rule, or pending rule concerning how it should measure GHG emissions. Further, Appellants were not unduly burdened in this rate case proceeding.

E. Whether the PUC fulfilled its affirmative constitutional obligation to protect native Hawaiian traditional and customary practices.

Because the PUC improperly curtailed Appellants’ substantive participation, the record is not sufficiently developed for us to address this issue. On remand, the PUC should consider its constitutional obligations.

F. Whether the PUC fulfilled its affirmative constitutional obligation as trustee over natural resources within the State’s public trust.

Again, because the PUC improperly curtailed Appellants’ substantive participation, the record is not sufficiently developed for us to address this issue. On remand, the PUC should consider its constitutional obligations.

II. Background

A. HG’s rate case application

In August 2017, HG filed an application with the PUC for

approval to increase its existing gas utility rates and to

revise certain rate schedules and rate rules. This “rate case”

was brought pursuant to HRS § 269-16 (2007 & Supp. 2014), titled

“Regulation of utility rates; ratemaking procedures.” Under

that statute, “All rates, fares, charges, classifications,

schedules, rules, and practices made, charged, or observed by

any public utility . . . shall be just and reasonable and shall

be filed with the [PUC].” HRS § 269-16(a) (2007 & Supp. 2014).

HG explained that it needed a total revenue increase of $14.962

million, “or 14.58% increase over revenue at present rates, in

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order for HG to have the opportunity to recover its reasonably

incurred expenses and earn its requested rate of return of 7.51%

on its prudently incurred investments in utility property” since

its last rate case in 2009.

Relevant to this appeal, HG sought to include the costs of

two new LNG projects in its rate base: the SNG Backup

Enhancement Project and the 30% SNG Conversion Project. HG

explained that there is “no indigenous natural gas in Hawaii or

access to natural gas distribution pipelines, which means that

gas must either be synthetically manufactured or imported.” HG

stated that it manufactures its own SNG through a catalytic

conversion process “utilizing a by-product of the oil refining

process known as naphtha (i.e., SNG Feedstock).” HG depends

upon Par Hawaii Refining, LLC to supply it with SNG Feedstock.

HG explained that this imported oil product subjects gas rates

to “meaningful price volatility.” Therefore, HG had secured PUC

approval to import LNG as a way to “diversify its fuel supply to

reduce its dependence on oil-based feedstock and local refinery

infrastructure.”

The first of the two new LNG projects was the SNG Backup

Enhancement Project. It involved the purchase of close to one

million dollars in equipment, including three LNG ISO

containers, a trailer chassis, a trailer-mounted mobile re-

gasifier, and certain improvements to Pier 38, the location of

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the backup system. In 2014, the PUC issued an order that, inter

alia, did not preclude HG from including these costs in its next

rate case (PUC Docket No. 2013-0184).

The second of the two new LNG projects was the 30% SNG

Conversion Project, which uses imported LNG to displace 30% of

HG’s SNG production. The PUC previously approved the project in

2016 (PUC Docket No. 2014-0315). HG estimated the project cost

to be $13.9 million for ISO containers, LNG regasification and

injection equipment, relocation of a plant maintenance building,

and the ISO container site.

B. PUC Order No. 35112 setting the rate case issues

On December 18, 2017, via Order No. 35112, the PUC

identified the issues raised by HG in its Application. All of

the issues pertained to the economic reasonableness of the rate

increase. The only other party to this proceeding was the

Consumer Advocate, an ex officio party pursuant to HRS § 269-51

(2007 & Supp. 2014) (“The executive director of the division of

consumer advocacy shall be the consumer advocate in hearings

before the public utilities commission. The consumer advocate

shall represent, protect, and advance the interests of all

consumers . . . of utility services. . . . The consumer advocate

shall have full rights to participate as a party in interest in

all proceedings before the public utilities commissions.”). See

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also HAR § 6-61-62(a) (1992) (“The consumer advocate is, ex

officio, a party to any proceeding before the commission.”).

C. This court’s MECO opinion

Four days before the PUC set its procedural schedule in

Order No. 35112, this court issued its opinion in In re

Application of Maui Elec. Co., 141 Hawaiʻi 249, 408 P.3d 1 (2017)

(“MECO”). In MECO, we held that there is a “protectable

property interest” in the “right to a clean and healthful

environment guaranteed by article XI, section 9 and defined by

HRS Chapter 269,” which governs the PUC. 141 Hawaiʻi at 253,

271, 408 P.3d at 5, 23. We also examined the legislative

history of HRS § 269-6(b), as amended in 2011, which revealed

the legislature’s intent “to require the [PUC] to consider the

hidden and long-term costs of reliance on fossil fuels, which

subjects the State and its residents to ‘increased air

pollution’ and ‘potentially harmful climate change due to the

release of harmful greenhouse gases.’” 141 Hawaiʻi at 263, 408

P.3d at 15. We further held that “HRS § 269-6(b)’s requirement

to reduce reliance on fossil fuels and to consider greenhouse

gas emissions applies to the fulfillment of all of the

Commission’s duties.” Id.

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D. Motions to intervene

Weeks after the MECO opinion was filed, in January 2018,

LOL and KLM5 each moved to intervene in this rate case. LOL

asserted it had an interest in the environment and in climate

change. KLM stated that it represented native Hawaiian

interests.

HG opposed both LOL’s and KLM’s motions to intervene. In

both filings, HG challenged whether LOL and KLM had standing,

arguing that neither met the traditional three-prong test for

standing ((1) injury in fact; (2) causation; and (3)

redressability)). Further, HG argued that the PUC had already

approved the “current importation of LNG, as a displacement to

[HG’s] existing oil-based naphtha fuel source,” in previous

dockets, Docket No. 2013-0184, the SNG Backup Enhancement

Project, and Docket No. 2014-0315, the 30% SNG Conversion

Project. HG noted LOL was granted participant status in the 30%

SNG Conversion Project and “had an opportunity to meaningfully

advocate its position” then. HG also argued that, if KLM wanted

to oppose the HG’s importation of LNG, it should have done

likewise. HG concluded its oppositions stating it was not

5 Another non-profit group, 350 Hawaiʻi, also moved to intervene. 350 Hawaiʻi is not a party to the instant appeal.

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opposed to having the PUC grant LOL and KLM participant status

in the proceedings.

E. PUC Order No. 35267 denying LOL’s and KLM’s motions to intervene but granting LOL and KLM participant status limited to sub-Issue No. 1h

In February 2018, the PUC denied the Appellants’ motions to

intervene; on its own motion, however, the PUC granted the

Appellants participant status in this rate case. In its Order

No. 35267, the PUC limited their participation to addressing

only the following issue, which the PUC added to the rate case

proceeding as “sub-Issue No. 1h”:

1. Whether HG’s proposed rate increase is reasonable, including, but not limited to: . . . . h. With respect to [HG’s] purchase and use of imported [LNG] as part of its gas utility operations, HRS § 269-6(b)’s requirement that:

In making determinations of the reasonableness of the costs of utility system capital improvements and operations, the commission shall explicitly consider, quantitatively or qualitatively, the effect of the State’s reliance on fossil fuels . . . and greenhouse gas emissions. The commission may determine that short-term costs or direct costs that are higher than alternatives relying more heavily on fossil fuels are reasonable, considering the impacts resulting from the use of fossil fuels.

In effect, whether the commission should disallow as unreasonable [HG’s] LNG costs due to the effects of [HG’s] use of imported LNG on the State’s reliance on fossil fuels and greenhouse gas emissions.

The PUC restricted LOL and KLM’s input on the GHG emissions

issue as follows:

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Concomitantly, issues outside the scope of this rate proceeding (Docket No. 2017-0105) include, but are not necessarily limited to:

The participants’ asserted interest in a clean and healthful environment beyond the State’s borders, given the Hawaii Constitution’s limited application and scope to a clean and healthful environment within the State’s borders.

Evidence of a causal connection between greenhouse gas emissions and climate change.

Instead, this commission, pursuant to HRS § 91-10(4) (taking notice of judicially recognizable facts) and HAR § 6-61-48 (official notice of matters as may be judicially noticed by the courts of the State), takes official notice of:

A. Act 32, part I, Session Laws of Hawaii 2017, by which the Legislature: (i) recognizes that “[c]ountless scientific studies have concluded that greenhouse gas emissions are a leading contributing factor to global warming[;]” and (ii) finds that climate change is “real.”

B. HRS chapter 342B, part VI, Greenhouse Gas Emissions, including HRS § 342B-71, which states:

Statewide greenhouse emissions limit, adoption. A statewide greenhouse gas emissions limit to be achieved by 2020 is hereby established that is equal to or below the level of the statewide greenhouse gas emissions in 1990, as determined by section 3 of Act 234, Session Laws of Hawaii 2007; provided that for the purposes of this Act greenhouse gas emissions from airplanes shall not be included. HRS § 342B-71.

Whether [HG’s] importation, purchase, and use of LNG should be banned or prohibited by federal or State law or by the commission.

Whether fracking should be banned or prohibited by federal or State law or by the commission.

Whether all new coal, oil, and gas projects, including “climate intense” projects, should be banned by federal or State law or by the commission.

The PUC rejected HG’s argument that LOL should be barred

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circumstances of the subject proceeding” simply because LOL did

not participate in the SNG Backup Enhancement Project docket

before the PUC, and participated on a limited basis in the 30%

SNG Conversion Project docket before the PUC. Likewise, the PUC

stated that KLM was not similarly barred from asserting an HRS

§ 269-6(b) review in this case simply because KLM did not move

to intervene or otherwise participate in the two prior LNG

dockets. The PUC explained that it read MECO’s standing

requirement as “appl[ying] to whether an entity has the

requisite standing to appeal,” not whether an entity has “met

its burden of proving that it is entitled to intervene or

participate in a [PUC] proceeding, pursuant to the applicable

provisions of HAR §§ 6-61-55 and 6-61-56.”

F. LOL’s notice and the PUC Order No. 35346 addressing that notice

On March 5, 2018, LOL filed a “Notice” with the PUC,

challenging Order No. 35627’s “exclusion of the entire section

of Act 234 [of the 2007 Legislative Session] regarding the

global nature of emissions.” Act 234 established a “Greenhouse

gas emissions reduction task force” and directed it to create a

“work plan” that “shall include but is not limited to the

following objectives: . . . . Recommendations to minimize

‘leakage’ or a reduction in emissions of greenhouse gases within

the State that is offset by an increase in emissions of

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greenhouse gases outside the State. . . .” Act 234, 2007 Haw.

Sess. Laws, at 700. LOL stated that the PUC should have also

taken judicial notice of the global nature of emissions instead

of limiting sub-Issue No. 1h to the Participants’ interest in “a

clean and healthful environment within the State’s borders,” and

not “beyond the State’s borders.”

In Order No. 35346, dated March 16, 2018, the PUC addressed

LOL’s Notice. It reaffirmed its limitation in sub-Issue No. 1h

to a clean and healthful environment within, not beyond, the

State’s borders by citing to article XV, section 1 of the Hawaiʻi

State Constitution, which is titled “Boundaries” and provides

the following:

The State of Hawaii shall consist of all the islands, together with their appurtenant reefs and territorial and archipelagic waters, included in the Territory of Hawaii on the date of enactment of the Admission Act, except the atoll known as Palmyra Island, together with its appurtenant reefs and territorial waters; but this State shall not be deemed to include the Midway Islands, Johnston Island, Sand Island (offshore from Johnston Island) or Kingman Reef, together with their appurtenant reefs and territorial waters.

The PUC also cited to section 2 of the Admission Act, which

similarly provides as follows:

The State of Hawaii shall consist of all the islands, together with their appurtenant reefs and territorial waters, included in the Territory of Hawaii on the date of enactment of this Act, except the atoll known as Palmyra Island, together with its appurtenant reefs and territorial waters, but said State shall not be deemed to include the Midway Islands, Johnston Island, Sand Island (offshore from Johnston Island), or Kingman Reef, together with their appurtenant reefs and territorial waters.

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G. Joint information requests and HG’s responses

In February 2018, LOL and KLM6 filed joint information

requests to HG seeking answers to 85 questions, the vast

majority of which HG refused to answer. Of importance to this

appeal, LOL and KLM asked HG the following question, labeled

JP-IR-49 (“information request 49”): “What [are] the cumulative

lifetime greenhouse gas emissions associated with each project

seeking rate recovery in this instant docket[?]” HG first

objected to the question as being “vague, ambiguous, irrelevant

and outside the scope of sub-Issue No. 1h.” HG ultimately

answered the question, however, and represented that the LNG

projects would result in decreased GHG emissions as follows:

Without waiving any right or objection thereto, HG states as follows with respect to the LNG-related projects:

Currently for the 30% [SNG] Conversion Project, which displaces quantities of SNG with LNG, greenhouse gas emissions associated with the SNG Plant’s stationary equipment fuel use (reported to the EPA under Subpart C) would decrease due to the amount of SNG displaced with LNG. In other words, greenhouse gas emissions associated with SNG production would decrease because less SNG is produced. Greenhouse gas emissions associated with LNG sold to HG customers (reported to the EPA under Subpart NN) would be nearly identical to displaced SNG because LNG is chemically similar to the SNG produced at the SNG Plant. The life of the 30% [SNG] Conversion Project has not been determined.

Currently for the [SNG] Backup Enhancement Project, a similar displacement principle would be applicable. However, because the amount of vaporized LNG injected into the transmissions pipeline will vary according to the number and length of SNG Plant shutdowns, the actual amount is difficult to quantify. For every therm of vaporized LNG

6 Another organization, Hawaiʻi 350, was also included in the joint filing, but it is not a party to the present appeal. See supra, note 5.

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injected into the pipeline to back up the SNG Plant, the total amount of greenhouse gas emissions would decrease due to the reduction in stationary equipment fuel necessary to create the displaced SNG. The life of the [SNG] Backup Enhancement Project has not been determined.

H. Joint participants’ testimony and exhibits

In March 2018, LOL and KLM jointly7 filed testimony and

exhibits. KLM highlighted the following impacts of climate

change on native Hawaiian cultural practices:

(1) storms and rising sea levels will destroy navigation points for Hawaiian seafarers;

(2) “forced migration of Polynesian communities [will] exacerbat[e] culture, identity, social welfare, and self- determination efforts”;

(3) “rising temperature and ocean acidification [will] alter[] marine species distribution, impacting lawaiʻa, and their cultural knowledge and practices”;

(4) “Papahānaumokuākea Marine National Monument will lose nesting [and pupping] sites for Hawaiian Monk Seal[s], Green Turtle nesting areas and Laysan Finch habitat”;

(5) “coastal erosion and rapid sea level rise . . . [will] threaten[] the cultural practice of burying ̒iwi kupuna along Hawaiʻi’s shores, which prevents the ʻuhane from joining the ʻaumakua, interrupting the delicate balance between salt and fresh water in loko iʻa, flooding and loss of burial grounds, home sites, fishponds, historic trails, heiau, and petroglyphs, the loss of salt cultivation, beach erosion, and contamination of crops and freshwater resources”;

(6) “declining health of the forests, [including] ʻōhiʻa lehua losses from Rapid ʻŌhiʻa Death, ʻāhinahina species on Mauna Loa, Mauna Kea and Haleakalā under threat, avian malaria infected mosquito populations moving up mountains ruining [the] few remaining disease-free refuges for native birds”; and

(7) “mountains are under attack[,] resulting in the loss of the snow season on Mauna Kea, the loss of the home of Poliʻahu.”

7 Another organization, Hawaiʻi 350, was also included in the joint filing, but it is not a party to the present appeal. See supra, notes 5&6.

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KLM characterized climate change’s effect upon native Hawaiians

as “another overthrow.”

LOL’s written testimony focused on two kinds of accounting

methodologies by which GHG emissions can be measured. The first

is the “Production-Based GHGE Accounting System” (“PAS”), and

the second is the “Customer-Based GHGE Accounting System”

(“CAS”). LOL testified that the PAS method determines “the

greenhouse gas emissions at a power plant per BTU of power

generated,” while the CAS method determines “the embedded

greenhouse gas emissions per BTU of power generated.” In other

words, CAS takes into account greenhouse gases produced not

simply upon the use of fuel (as PAS does), but also greenhouse

gases produced upon making the fuel itself. LOL asserted HG’s

“fuel has large, hidden emissions which distort the value of

their fuel.” LOL stated that the PUC had yet to adopt any

particular accounting methodology for measuring GHG emissions.

It urged the PUC to adopt the CAS methodology. LOL also

asserted that the “participants would expect that they would

have due process rights to review any other proposed system

before its adoption.”

I. Briefing on sub-Issue No. 1h

In June 2018, HG and the Consumer Advocate settled on a

reasonable rate increase; therefore, the evidentiary hearing

scheduled for that month was waived by the parties and

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participants. In lieu of an evidentiary hearing on the

remaining sub-Issue No. 1h, HG and the participants agreed to

file opening and reply briefs.8

In its opening brief, HG argued that the PUC should not

disallow, as unreasonable, HG’s LNG costs “due to the effects of

HG’s use of imported LNG on the State’s reliance on fossil fuels

and greenhouse gas emissions,” because (1) the PUC “ha[d]

already determined that HG’s expenditures for LNG [we]re prudent

and in the public interest in Docket Nos. 2014-0315 [30% SNG

Conversion Project] and 2013-0184 [SNG Backup Enhancement

Project]”; (2) HG’s response to information request 49 was that

its LNG projects would decrease GHG emissions; and (3) LOL and

KLM did not introduce any contrary evidence and, instead,

offered only generalized statements regarding broad policy

issues. In their joint reply brief, LOL and KLM counter-argued

that HG “presented no data on life cycle emissions to

substantiate [the] claim” that its two LNG projects would

decrease GHG emissions, as it asserted in its response to

information request 49.

In their joint opening brief, LOL and KLM cited MECO, 141

Hawaiʻi 249, 408 P.3d 1, to hold the PUC to its statutory

obligation under HRS § 269-6(b) to consider the “hidden and long

8 The Consumer Advocate, while a party, did not take a position on sub- Issue No. 1h.

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term costs” of HG’s LNG projects. To that end, they called on

the PUC to adopt the CAS methodology for measuring “life cycle”

GHG emissions. They noted, for example, that LNG fracked9 out-

of-state releases methane, which is “34 times stronger than

[carbon dioxide] in trapping heat over a 100-year period and 86

times stronger over 20 years.” LOL and KLM also urged the PUC

to fulfill its obligations under Hawaiʻi state constitutional

provisions protecting (1) Hawaiʻi’s natural resources, which are

held in public trust, (2) the right to a clean and healthful

environment, and (3) native Hawaiian traditional and customary

rights. LOL and KLM accused HG of recklessly expanding LNG use

in Hawaiʻi without providing clear information about its GHG

emissions. In its reply brief, HG pointed out that it did not

seek to expand the use of LNG; rather, the LNG projects had

already been approved, and HG sought only to include those

projects in its rate base.

J. PUC Decision and Order No. 35969

On December 21, 2018, the PUC handed down its Decision and

Order No. 35969. It approved HG and the Consumer Advocate’s

stipulation upon settlement, granting HG an increase of

$8,896,152, or approximately 8.39% over revenues at present

rates . . . .” The PUC specifically found that both the 30% SNG

9 The record does not indicate where or how HG’s imported LNG is sourced.

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Conversion Project and the SNG Backup Enhancement Project were

“used and useful for public utilities purposes” and granted as

“reasonable” the stipulated cost recovery for both projects.

The PUC specifically found and concluded, “The [S]NG Backup

Enhancement System increases the reliability of [HG’s] SNG

operations in the event of planned and unplanned SNG Plant

outages, to the customers’ benefit.” It also appeared to adopt,

in its specific findings and conclusions, a prior

“articulat[ion]” that the 30% SNG Conversion Project would

increase Hawaiʻi’s “fuel diversity” in two ways: first, by

diversifying the State’s fuel supply by adding LNG; and, second,

by diversifying the State’s sources of fuel, because HG planned

to purchase LNG from “two different suppliers through different

ports in difference regions,” in the event one supplier were to

become unavailable.

The PUC’s Decision and Order contains a separate section

addressing sub-Issue No. 1h, titled “In Making Determinations of

the Reasonableness of the Costs of Utility System Capital

Improvements and Operations, the Commission Shall Explicitly

Consider, Quantitatively or Qualitatively, the Effect of the

State’s Reliance on Fossil Fuels on Price Volatility, Export of

Funds for Fuel Imports, and Fuel Supply Reliability Risk, and

Greenhouse Gas Emissions,” which tracks the language of HRS

§ 269-6(b). The commission stated that it “explicit[ly]

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consider[ered], weigh[ed], and balanc[ed] . . . the four

specified criteria” before “find[ing] reasonable [HG’s] 2018

Test Year LNG utility system capital improvements and operations

costs.” The PUC therefore “decline[d] to disallow [HG’s] 2018

Test Year LNG costs.” The PUC made “specific[] find[ings] and

conclu[sions]” concerning the four specified criteria, grouping

its analysis of “price volatility” and “fuel supply reliability

risk” together, then addressing “export of funds for fuel

imports,” and “greenhouse gas emissions.”

As to GHG emissions, the PUC appeared to adopt HG’s

representation that the 30% SNG Conversion Project and SNG

Backup Enhancement Project would result in decreased GHG

emissions:

A. For the 30% [SNG] Conversion Project (i.e., Docket No. 2014-0315), greenhouse gas emissions associated with the SNG Plant’s stationary equipment fuel use will decrease (i.e., reported to the EPA under Subpart C), while greenhouse gas emissions associated with LNG sold to customers (i.e., reported to the EPA under Subpart NN) will be nearly identical to displaced SNG; and

B. For the [S]NG Backup Enhancement . . . Project (i.e., Docket No. 2013-0184), a similar displacing SNG with LNG principle will apply.

14. As [HG] specifically explains:

Currently for the 30% [SNG] Conversion Project, which displaces quantities of SNG with LNG, greenhouse gas emissions associated with the SNG Plant’s stationary equipment fuel use (reported to the EPA under Subpart C), would decrease due to the amount of SNG displaced with LNG. In other words, greenhouse gas emissions associated with SNG production would decrease because less SNG is produced. Greenhouse gas emissions associated with LNG sold to HG customers (reported to the EPA under Subpart NN) would be nearly identical to displaced SNG because LNG is chemically

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similar to the SNG produced at the SNG Plant. The life of the 30% [SNG] Conversion Project has not been determined.

Currently for the [SNG] Backup Enhancement Project, a similar displacement principle would be applicable. However, because the amount of vaporized LNG injected into the transmissions pipeline will vary according to the number and length of SNG Plant shutdowns, the actual amount is difficult to quantify. For every therm of vaporized LNG injected into the pipeline to back up the SNG Plant, the total amount of greenhouse gas emissions would decrease due to the reduction in stationary equipment fuel necessary to create the displaced SNG. The life of the [SNG] Backup Enhancement Project has not been determined.

The PUC then found and concluded, “Participants have not

produced any credible evidence: (A) which contradicts [HG’s]

evidence; or (B) that [HG’s] use of LNG as part of its utility

operations will increase greenhouse gas emissions.” The PUC

continued, “Instead, Participants rely on general assertions,

without credible evidentiary support, that [HG’s] use of

imported LNG will increase greenhouse gas emissions.”

The PUC included a separate section in its Decision and

Order titled “Commission’s Response to the Legal Arguments

Raised.” The PUC first concluded that “HRS § 269-6(b), by its

plain language, does not mandate the [PUC’s] adoption of the

Customer-Based GHGE Accounting System (i.e. CAS) described by

[LOL and KLM].” Next, with respect to the Hawaiʻi State

Constitution’s rights to due process and to a clean and

healthful environment, the PUC expressly acknowledged MECO’s

holding that “HRS Chapter 269 is a law relating to environmental

quality that defines the right to a clean and healthful

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environment under article XI, section 9 of the Hawaii

Constitution, by providing that express consideration be given

to reducing greenhouse gas emissions in the [PUC’s] decision-

making (specifically citing to HRS § 269-6(b)). . . .” The PUC

also acknowledged MECO’s due process holding that a clean and

healthful environment is a protected property interest, and that

the PUC has “authority to set limitations in conducting the

proceedings so long as the procedures sufficiently afford an

opportunity to be heard at a meaningful time and in a meaningful

manner on the issue of [a utility’s proposed] impact on the

asserted property interest.” The PUC then concluded that LOL

and KLM were afforded an opportunity to be heard at a meaningful

time and in a reasonable manner on sub-Issue No. 1h, due to

their extensive participation in the rate case proceedings. LOL

and KLM timely appealed the PUC’s Decision and Order.

III. Standards of review

A. Agency appeals

This court reviews appeals from PUC decisions under HRS

§ 91-14(g), which states the following:

Upon review of the record, the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are: (1) In violation of constitutional or statutory provisions; (2) In excess of the statutory authority or jurisdiction of the agency; (3) Made upon unlawful procedure;

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(4) Affected by other error of law; (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) Arbitrary, or capricious, or characterized by abuse of direction or clearly unwarranted exercise of discretion.

Conclusions of law are reviewed de novo, pursuant to

subsections (1), (2) and (4); questions regarding procedural

defects are reviewable under subsection (3); findings of fact

(FOF) are reviewable under the clearly erroneous standard,

pursuant to subsection (5); and an agency’s exercise of

discretion is reviewed under the arbitrary and capricious

standard, pursuant to subsection (6). Matter of Haw. Elec.

Light Co., 145 Hawaiʻi 1, 10-11, 445 P.3d 673, 682-83 (2019)

(“HELCO”) (citation omitted). “Mixed questions of law and fact

are ‘“reviewed under the clearly erroneous standard because the

conclusion is dependent upon the facts and circumstances of the

particular case.”’” HELCO, 145 Hawaiʻi at 11, 445 P.3d at 683.

(citation omitted).

B. Statutory interpretation

We review the circuit court’s interpretation of a

statute de novo. State v. Pacheco, 96 Hawaiʻi 83, 94, 26 P.3d

572, 583 (2001). Our statutory construction is guided by

established rules:

When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.

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96 Hawaiʻi at 94, 26 P.3d at 583 (citations omitted).

C. Constitutional law

Questions of constitutional law are reviewed de novo, under

the right/wrong standard. Blair v. Harris, 98 Hawaiʻi 176, 178,

45 P.3d 798, 800 (2002).

D. Agency rule-making

An agency possesses broad discretion to proceed by general

rule-making or by adjudication. Application of Hawaiian Elec.

Co., 81 Hawaiʻi 459, 467, 918 P.2d 561, 569 (1996). This court

reviews for an abuse of discretion an agency’s decision to

proceed by adjudication rather than by rule-making.

IV. Discussion

A. LOL and KLM have standing to appeal the PUC’s decision and order.

HG once again argues LOL and KLM lack standing to bring

this appeal, contending they do not satisfy the traditional

three-prong test for standing used in MECO, 141 Hawaiʻi 249, 408

P.3d 1: (1) injury in fact, (2) causation, and (3)

redressability. LOL and KLM counter-argue that the applicable

test for standing in administrative appeals is the two-prong

test used in HELCO, 145 Hawaiʻi 1, 445 P.3d 673: (1) “one must

be a person aggrieved . . . by a final decision and order in a

contested case,” and (2) “the aggrieved person must have

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participated in the contested case from which the decision

affecting him resulted.”

The two-prong test for standing applies. MECO applied the

traditional three-prong standing test on appeal because the

appellants there challenged a PUC order denying them intervenor

or participant status in the first instance. 141 Hawaiʻi at 256,

408 P.3d at 8. In this case, HG did not appeal the PUC’s order

granting LOL and KLM participant status. Rather, this is an

appeal brought by LOL and KLM, who participated in the contested

rate case and are aggrieved by the PUC’s final decision and

order. They are bringing an administrative appeal. Therefore,

we apply the well-established two-prong standing test, most

recently re-affirmed in HELCO, for intervenors or participants

who are appealing final decisions and orders of the PUC. See

also Life of the Land, Inc. v. Land Use Comm’n, 61 Haw. 3, 6,

594 P.2d 1079, 1081 (1979) (holding there are “two basic

requirements” for standing to appeal an agency decision:

“first, one must be a person aggrieved and second, the aggrieved

party must have participated in a contested case.”); Application

of Hawaiian Elec. Co., 56 Haw. 260, 265, 535 P.2d 1102, 1106

(1975) (“[W]here the appellants have been ‘aggrieved’ by the

action of the PUC, and where they were involved as

‘participants’ during the agency hearings, and where the PUC

staff (the agency through which they participated at the

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hearings) has failed to appeal the decision of the PUC, the

appellants may challenge the order of the PUC in this court.”);

City & Cty. of Honolulu v. Pub. Utils. Comm’n., 53 Haw. 431,

433, 495 P.2d 1180, 1182 (1972) (per curiam) (“HRS § 91-14(a),

which provides ‘(a)ny person aggrieved by a final decision and

order in a contested case . . . is entitled to judicial review

. . .’, is clear and unambiguous that the person aggrieved must

have been involved in the contested case before the PUC.”).

In this case, Appellants have sufficiently alleged that the

PUC’s decision “specially, personally, and adversely affected”

their members. HELCO, 145 Hawaiʻi at 21, 445 P.3d at 693. LOL

is a Hawaiʻi nonprofit organization with members who live, work,

and recreate in Hawaiʻi and are “deeply concerned” about the

environmental and financial impacts of climate change in

Hawaiʻi. LOL asserts that sea level rise as a result of climate

change and increased GHG emissions will result in over 20,000

Hawaiʻi residents in need of new homes and could “generate

substantial social, infrastructure, and economic impacts with

ripple effects throughout the State,” which will invariably harm

its members. Similarly, KLM is a Hawaiʻi nonprofit dedicated to

protecting native Hawaiian rights, with members who reside in

Hawaiʻi and have an interest in protecting native Hawaiian

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traditions and culture. It asserts that the combined effects of

climate change will adversely impact its members. For example,

saltwater intrusions into the freshwater aquifers, coastal erosion and rapid sea level rise [will] threaten[] the cultural practice of burying ʻiwi kupuna along Hawaiʻi’s shores, which prevents the ʻuhane from joining the ʻaumakua, interrupting the delicate balance between salt and fresh water in loko iʻa, flooding and loss of burial grounds, home sites, fishponds, historic trails, heiau, and petroglyphs, the loss of salt cultivation, beach erosion, and contamination of crops and freshwater resources.

Thus, Appellants have demonstrated they are “persons aggrieved”

who participated in the contested case; therefore, they have

standing to appeal.

B. The PUC did not fulfill its statutory obligations under HRS § 269-6(b).

Appellants argue the PUC failed to carry out its mandate

under HRS § 269-6(b), which states the following (with emphases

added):

The public utilities commission shall consider the need to reduce the State’s reliance on fossil fuels through energy efficiency and increased renewable energy generation in exercising its authority and duties under this chapter. In making determinations of the reasonableness of the costs of utility system capital improvements and operations, the commission shall explicitly consider, quantitatively or qualitatively, the effect of the State’s reliance on fossil fuels on price volatility, export of funds for fuel imports, fuel supply reliability risk, and greenhouse gas emissions. The commission may determine that short-term costs or direct costs that are higher than alternatives relying more heavily on fossil fuels are reasonable, considering the impacts resulting from the use of fossil fuels.

First, the Appellants contend that the PUC’s consideration of

GHG emissions should not have been geographically limited to

those emissions occurring within the State’s borders. Second,

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the Appellants assert that the PUC’s Decision and Order merely

adopted, without substantiating, HG’s representations in

information request 49 that its LNG projects would result in

decreased GHG emissions.

As to the Appellants’ first point, HG and the PUC respond

that the plain language of HRS § 269-6(b) does not require the

PUC to consider GHG emissions beyond the State’s borders. As to

the Appellants’ second point, HG and the PUC counter-argue that

the PUC made express findings on the GHG emissions issue in the

section of its Decision and Order titled “Greenhouse Gas

Emissions,” and that HG’s answer to information request 49 is

the “only credible evidence in the record.”

Appellants are correct. In interpreting HRS § 269-6(b), we

look to “the language contained in the statute itself,” which

must be read “in the context of the entire statute and

construe[d] . . . in a manner consistent with its purpose.”

Pacheco, 96 Hawaiʻi at 94, 26 P.3d at 583 (citations omitted).

We note that the plain language of HRS § 269-6(b) does not limit

the PUC’s consideration of GHG emissions to those only occurring

within the state. Also, elsewhere in the HRS, where the

legislature has intended to limit consideration of certain GHG

emissions, it plainly does so. For example, HRS § 342B-71

(2010) sets a “[s]tatewide greenhouse gas emissions limit” at

“equal to or below the level of the statewide greenhouse gas

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emissions in 1990,” but it specifically excludes “greenhouse gas

emissions from airplanes.” It is “generally presumed that the

legislature acts intentionally and purposely in the disparate

inclusion or exclusion” of terms in its statutes. State v.

Savitz, 97 Hawaiʻi 440, 447, 39 P.3d 567, 574 (2002) (holding

that the legislature could have drafted a statute to include a

limitation on the court’s discretion, and noting that “[t]he

fact that it did not do so manifests its intent that it chose

not to do so”). If the legislature intended HRS § 269-6(b) to

exclude from the PUC’s consideration GHG emissions generated

out-of-state by imported fossil fuels, it would have done so.

We have also already extensively examined the purpose of

HRS § 269-6(b), as amended, in MECO, 141 Hawaiʻi 249, 408 P.3d 1.

In that case, we noted “a primary purpose” of the statute is to

“require the [PUC] to consider the hidden and long-term costs of

reliance on fossil fuels, which subjects the State and its

residents to ‘increased air pollution’ and ‘potentially harmful

climate change due to the release of harmful greenhouse

gases.’” MECO, 141 Hawaiʻi at 263, 408 P.3d at 15 (citing H.

Stand. Comm. Rep. No. 1004, in 2011 House Journal, at 1332)

(emphasis added)).

Appellants contend HG has quite literally “hidden” the GHG

emissions impact of its imported LNG. The “hidden” GHG

emissions impacts Appellants are concerned with include GHG 29 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER **

emissions from the extraction, development, production, and

transportation of imported LNG, which occur out-of-state, but

which, nonetheless, impact Hawaiʻi due to the global nature of

GHG emissions. We agree with this contention.10 In MECO, this

court noted that “it is commonly understood that ‘[a]ir

pollution is transient’ and is ‘heedless’ of even ‘state

boundaries.’” 141 Hawaiʻi at 268, 408 P.3d at 20 (citing E.P.A.

v. EME Homer City Generation, L.P., 134 S.Ct. 1584, 1592

(2014)).

Over a decade before we issued our MECO opinion, the

legislature had already expressed its concern about the impact

on Hawaiʻi of GHG emissions produced out-of-state. In 2007, the

legislature committed the state to reduce, by January 1, 2020, 10 We note the Appellants and HG touch on the Commerce Clause of the United States Constitution in their briefing. Under the Commerce Clause, Congress has the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. art. I, § 8, cl. 3. The Commerce Clause “has long been understood to have a ‘negative’ aspect that denies the States the power unjustifiably to discriminate against or burden the interstate flow of articles in commerce.” Or. Waste Sys., Inc. v. Dep’t of Envtl. Quality of State of Or., 511 U.S. 93, 98 (1994). HG argues that interpreting HRS § 269-6(b) to take into account out-of- state GHG emissions produced by its imported LNG is extra-territorial legislation, and per se unconstitutional under Healy v. Beer Inst., 491 U.S. 324, 336 (1989), because it attempts to regulate GHG emissions beyond Hawaiʻi’s borders. Failing that, HG argues in the alternative that interpreting HRS § 269-6(b) this way violates the commerce clause under Pike v. Bruce Church, Inc., 397 U.S. 137 (1970), because the burden imposed on interstate commerce outweighs any putative local benefit to Hawaiʻi. To the extent the dormant Commerce Clause is even implicated in this case, it is not violated. HRS § 269-6(b) tasks the PUC only with explicitly “considering” GHG emissions from HG’s imported LNG, not regulating GHG emissions extra-territorially. Further, the burden associated with “considering” out-of-state GHG emissions is minimal compared to the local benefit at stake: the constitutional protection of a clean and healthful environment.

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“statewide greenhouse gas emissions to levels at or below the

best estimations and updates of the inventory of greenhouse gas

emissions estimates for 1990.” Act 234, H.B. 226, 24th Leg.,

Reg. Sess. (2007) (enacted), available at

https://www.capitol.hawaii.gov/session2007/

bills/GM1005_.PDF, also available at https://perma.cc/TH44-RFPQ.

To that end, Act 234 established the Greenhouse Gas Emissions

Reduction Task Force “to prepare a work plan and regulatory

scheme for implementing the maximum practically and technically

feasible and cost-effective reductions in greenhouse gas

emissions from sources or categories of sources of greenhouse

gases to achieve the statewide greenhouse gas emissions limits

by 2020.” Id. The legislature specifically directed the Task

Force to craft “[r]ecommendations to minimize ‘leakage’ or a

reduction in emissions of greenhouse gases within the State that

is offset by an increase in emissions of greenhouse gases

outside the State. . . .” Id. at PDF p. 11. The Task Force’s

work plan, in turn, “strongly insist[ed] the life-cycle impact

of energy sources be considered in any adopted energy laws,”

because “even though an energy technology may be relatively

clean-burning within the boundaries of Hawaii, the process in

which it is made elsewhere is also of importance.” The

Greenhouse Gas Emissions Reduction Task Force, Work Plan for

Greenhouse Gas Emissions Reductions 14 (Dec. 30, 2009),

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http://energy.hawaii.gov/wp-content/uploads/2016/03/2015-

greenhouse-gas-program.pdf, also available at

https://perma.cc/5EZQ-LK9Z. Thus, since Act 234, part of this

state’s GHG emission reduction strategy has included taking into

account out-of-state GHG “leakage” resulting from our energy

choices.11

In this rate proceeding, HG and the PUC have largely

disregarded any possible GHG emission leakage from imported LNG.

The PUC’s geographic limitation in Order No. 35112 indicates

that it did not intend to, and in fact did not, explicitly

consider out-of-state LNG-related GHG emissions in discharging

its duties under HRS § 269-6(b). The PUC’s action was contrary

to law and, therefore, an abuse of discretion.

11 It is important to note that the EPA, California, and Oregon have all adopted, in some form, Argonne National Laboratory’s “Greenhouse gases, Regulated Emissions and Energy use in Transportation” (or “GREET”) Model, see https://greet.es.anl.gov/, also available at https://perma.cc/TQ7Q-XYGM, to calculate life-cycle GHG emissions. See Rocky Mountain Farmers Union v. Corey, 730 F.3d 1070, 1081-82 (9th Cir. 2013) (explaining California’s CA- GREET Model); Am. Fuel & Petrochemical Mfrs. v. O’Keeffe, 903 F.3d 903, 908- 09 (9th Cir. 2018) (explaining Oregon’s OR-GREET model); and Regulation of Fuels and Fuel Additives: Renewable Fuel Standard Program (“RFS”), 72 Fed. Reg. 23900, 23907 (May 1, 2007) (codified at 40 C.F.R. pt. 80) (explaining how the EPA utilized GREET in calculating life-cycle GHG emissions for its RFS Program). California’s CA-GREET modeling can be found at https://ww2.arb.ca.gov/resources/documents/lcfs-pathway-certified-carbon- intensities, also available at https://perma.cc/U3VB-R898. Oregon’s OR-GREET modeling can be found by accessing the link for the “carbon intensity values” Excel worksheets located at https://www.oregon.gov/deq/aq/programs/Pages/Clean-Fuel-Pathways.aspx, also available at https://perma.cc/VLX9-AU3. The EPA’s RFS GREET modeling can be found at https://www.epa.gov/fuels-registration-reporting-and-compliance- help/lifecycle-greenhouse-gas-results, also available at https://perma.cc/647V-YVPA. Thus, life-cycle GHG emission information is available to participants. See also note 13, infra.

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Next, the PUC’s limited and perfunctory review of GHG

emissions in this rate case is evident in the Greenhouse Gas

Emissions section of its Decision and Order No. 35969. Instead

of making any independent factual findings concerning the GHG

emissions of HG’s LNG-related projects, the PUC simply repeated

HG’s representation (made in HG’s response to the Appellants’

information request 49) that GHG emissions from its SNG plant

will decrease where LNG displaces SNG. There is no GHG

emissions information about the LNG HG uses. Therefore, the PUC

could not have fulfilled its “affirmative duty ‘to reduce the

State’s reliance on fossil fuels through energy efficiency and

increased renewable energy generation,’” as HRS § 269-6(b)

requires, because the PUC could not have “‘explicitly

consider[ed]’ the effect of the State’s reliance on fossil fuels

on the level of ‘greenhouse gas emissions.’” MECO, 141 Hawaiʻi

at 269 n.36, 408 P.3d at 21 n.36 (emphasis added).

Further, as Appellants point out, the PUC did not conduct a

“quantitative or qualitative analysis” that substantiates its

finding that HG’s LNG projects will decrease GHG emissions. In

this way, this case is closely analogous to HELCO, 145 Hawaiʻi 1,

445 P.3d 673. In that case, HELCO sought the PUC’s review of an

amended power purchase agreement (“Amended PPA”) between it and

Hu Honua Bioenergy, LLC, in which Hu Honua would construct and

operate a biomass-fueled energy production facility, and HELCO 33 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER **

would purchase energy from the facility. 145 Hawaiʻi at 5-6, 445

P.3d at 677-78. LOL moved to intervene in order to assert its

environmental interests in the project, but the PUC granted it

participant status instead. 145 Hawaiʻi at 6, 445 P.3d at

678. The PUC limited LOL’s participation to addressing business

aspects of the project (whether the energy price components

properly reflect the cost of biomass fuel supply, and whether

HELCO’s purchase power arrangements were prudent and in the

public interest); LOL’s limited participation did not allow it

to address environmental aspects of the project. 145 Hawaiʻi at

7, 445 P.3d at 679. As a result, HELCO and Hu Honua refused to

answer LOL’s information requests concerning GHG emissions as

beyond the scope of LOL’s participation. 145 Hawaiʻi at 8, 445

P.3d at 680.

The PUC in HELCO ultimately approved the Amended PPA. 145

Hawaiʻi at 9, 445 P.3d at 681. In its findings and conclusions,

the PUC merely “restated HELCO’s representations that the

biomass facility could potentially save approximately 15,700

barrels of fuel per year and contribute to the State’s

[renewable portfolio standard] goals,” but “it made no express

findings or conclusions regarding the biomass facility’s GHG

emissions.” 145 Hawaiʻi at 24, 445 P.3d at 696. LOL appealed,

arguing that the PUC did not explicitly consider GHG emissions

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in determining whether the costs of the Amended PPA were

reasonable, in violation of HRS § 269-6(b), and that it was

denied due process to protect its right to a clean and healthful

environment due to the PUC’s limitation on its

participation. 145 Hawaiʻi at 10, 445 P.3d at 682.

In HELCO, this court held that the PUC needed to do more

than restate HELCO’s representation about energy savings;

instead, this court required the PUC to “substantiate this

finding by addressing the hidden and long-term environmental and

public health costs of reliance on energy produced at the

proposed facility.” 145 Hawaiʻi at 24, 445 P.3d at

696. HELCO continued, “These costs include the ‘potential for

increased air pollution as a result of GHG emissions’ directly

attributed to energy generation at the facility, as well as GHG

emissions produced at earlier stages in the production process,

such as fuel production and transportation.” Id. (citing MECO,

141 Hawaiʻi at 263, 408 P.3d at 15).

The HELCO court further noted that “[a]n agency’s findings

should be ‘sufficient to allow the reviewing court to track the

steps by which the agency reached its decision.’” HELCO, 145

Hawaiʻi at 11, 445 P.3d at 683. Where they are not, a “remand

pursuant to HRS § 91-14(g) is appropriate,” as the “agency’s

findings are incomplete and provide no basis for review.” 145

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Hawaiʻi at 24, 445 P.3d at 696 (citations omitted). In this

case, the PUC similarly restated HG’s representation that its

LNG projects will decrease GHG emissions, but it did not

substantiate those findings in a manner that would allow this

court to track the steps by which it reached its

decision.

The PUC contends that this case was just a rate case, and

that the PUC had already fulfilled the requirements of HRS

§ 269-6(b) in the earlier dockets approving the LNG

projects. The PUC, however, specifically granted the Appellants

participant status to address HRS § 269-6(b) with respect to GHG

emissions. Also, MECO stated that “HRS § 269-6(b)’s requirement

to reduce reliance on fossil fuels and to consider greenhouse

Commission’s duties.” 141 Hawaiʻi at 263, 408 P.3d at

15 (emphasis added). See also MECO, 141 Hawaiʻi at 269, 408 P.3d

at 21 (“[T]he consideration of whether energy charges are

reasonable or a business arrangement is prudent would

necessarily involve an evaluation of the hidden and long-term

costs of the activities . . . , including consideration of the

potential for harmful greenhouse gas emissions.”).

In this case, the PUC did not fulfill the statutory

requirements of HRS § 269-6(b) because (1) it did not explicitly

consider all of the GHG emission impacts of HG’s LNG projects, 36 ** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER **

having erroneously previously determined that the out-of-state

GHG emissions from HG’s imported LNG were beyond the scope of

the rate proceeding, and, (2) upon considering the limited

evidence submitted in this case, merely restating, without

substantiating, HG’s representation that its LNG projects would

decrease GHG emissions.

C. The PUC’s limitations in sub-Issue No. 1h violated Appellants’ due process rights.

The Appellants argue that the PUC violated their due

process rights, under the Fifth Amendment to the United States

Constitution, as well as under article I, section 5 of the

Hawaiʻi State Constitution, by denying them a meaningful

opportunity to be heard. “The basic elements of procedural due

process of law require notice and an opportunity to be heard at

a meaningful time and in a meaningful manner before governmental

deprivation of a significant property interest.” HELCO, 145

Hawaiʻi at 25, 445 P.3d at 697 (citations omitted). Under MECO,

141 Hawaiʻi 249, 408 P.3d 1, Appellants possess a protected

property interest in a clean and healthful environment under

article XI, section 9 of the Hawaiʻi State Constitution, which

states:

Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law.

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HRS § 269-6(b) is a “law relating to environmental quality,” and

it requires the PUC to “explicitly consider, quantitatively or

qualitatively, the effect of the State’s reliance on fossil

fuels on . . . greenhouse gas emissions.”

Appellants acknowledge that MECO held that the PUC “has the

authority to set limitations in conducting the proceedings so

long as the procedures sufficiently afford an opportunity to be

heard at a meaningful time and in a meaningful manner” in a

proceeding before it, citing MECO, 141 Hawaiʻi at 270, 408 P.3d

at 22. They point to HELCO, however, as a case in which the

PUC’s limitations deprived participants of a meaningful

opportunity to be heard. Specifically, they state that this

court in HELCO found a due process violation where the PUC

limited participants to addressing two economic sub-issues, when

the participants’ asserted interest was environmental, not

economic. Analogizing HELCO to their case, the Appellants argue

that the PUC violated their due process rights by limiting the

scope of sub-Issue No. 1h to exclude Appellants’ interest in the

full consideration of the GHG emission impact of HG’s imported

LNG.

The PUC counters that it framed sub-Issue No. 1h to

“mirror” the language of HRS § 269-6(b); therefore, it argues,

the Appellants’ due process rights were not violated. Next,

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both HG and the PUC argue that Appellants were afforded a

meaningful opportunity to be heard in this rate proceeding, as

Appellants participated extensively by submitting joint

information requests, written testimony and exhibits, responses

to HG’s information requests, and opening and reply briefs on

sub-Issue No. 1h.

In this case, as discussed supra, Section IV.B, the PUC

limited its consideration of GHG emissions to those within the

boundaries of the state, truncating Appellants’ property

interest in a manner not required under the plain language of

HRS § 269-6(b), and in a manner contrary to MECO. See 141

Hawaiʻi at 268, 408 P.3d at 20 (“[I]t is commonly understood that

‘[a]ir pollution is transient’ and is ‘heedless’ of even ‘state

boundaries.’”) (citation omitted). In limiting the Appellants’

constitutionally protected interest in this way, the PUC

violated the Appellants’ due process rights. See HELCO, 145

Hawaiʻi at 25-26, 445 P.3d at 697-98 (holding that the PUC’s

limitation upon LOL’s participation to exclude its asserted

interest in a clean and healthful environment violated LOL’s due

process rights). Therefore, the PUC’s argument that it properly

framed sub-Issue No. 1h to “mirror” HRS § 269-6(b) fails.

Further, when the Appellants’ interest is limited in this way,

the “opportunities to be heard” cannot be said to be meaningful.

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D. The PUC did not abuse its discretion in adjudicating HG’s rate case rather than proceeding through rule-making.

Also at issue in this case is whether the PUC improperly

created GHG emissions policy through the ad hoc adjudication of

HG’s rate case, where such policy should develop through the

rule-making procedures of HRS chapter 91, Hawaiʻi’s

Administrative Procedure Act (“HAPA”).12 This court has

previously explained the difference between rule-making and

adjudication as follows: “Rule making is agency action

governing the future conduct either of groups or persons or of a

single individual; it is essentially legislative in nature.

. . . Adjudication, conversely, is concerned with the

determination of past and present rights and liabilities.”

Foster Vill. Cmty. Ass’n, 4 Haw. App. at 475-77, 667 P.2d at

857-58. The parties acknowledge that “agencies are allowed the

broad discretion to choose whether to develop policy by rule-

making or adjudication.” In re Application of HECO, 81 Hawaiʻi

12 HAPA was enacted “to provide a uniform administrative procedure for all state and county boards, commissions, departments or offices which would encompass the procedure of rule making and adjudication of contested cases.” Foster Vill. Cmty. Ass’n v. Hess, 4 Haw. App. 463, 475, 667 P.2d 850, 857 (1983) (citation omitted). Chapter 91 contains procedures for state agencies to follow with respect to rule-making. HRS § 91-1 (2012) defines a rule as “each agency statement of general or particular applicability and future effect that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice requirements of any agency.” HRS § 91-3 (2012) requires an “adopting agency,” “prior to the adoption of any rule authorized by law,” to, among other things, “[g]ive at least thirty days’ notice for a public hearing,” and “[a]fford all interested persons opportunity to submit data, views, or arguments, orally or in writing.”

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at 468, 918 P.2d at 570 (citation omitted). However,

“policymaking by adjudication is an abuse of discretion if: (1)

it is used to ‘circumvent the requirements of the Administrative

Procedure Act’ by amending a recently amended rule or bypassing

a pending rule-making proceeding; or (2) ‘an agency’s sudden

change of direction leads to undue hardship for those who had

relied on past policy.’” Id. (citation omitted).

In this case, only the second form of abuse of discretion

is at issue, as there is no rule, recently amended rule, or

pending rule-making proceeding concerning how the PUC shall

measure GHG emissions.13 As to when an agency engages in a

13 We note other states, as well as the federal government, have developed rules for measuring GHG emissions using a life-cycle analysis, at least for transportation fuels. See, e.g., Clean Air Act § 211(o), 42 U.S.C. § 7545(o)(1)(H) (2009) (defining “lifecycle greenhouse gas emission” as the “aggregate quantity of greenhouse gas emissions (including direct emissions and significant indirect emissions such as significant emissions from land use changes), as determined by the Administrator, related to the full fuel lifecycle, including all stages of fuel and feedstock production and distribution, from feedstock generation or extraction through the distribution and delivery and use of the finished fuel to the ultimate consumer, where the mass values for all greenhouse gases are adjusted to account for their relative global warming potential”); Cal. Code Regs. tit. 17, § 95481(a)(38) (2020) (defining “Life Cycle Greenhouse Gas Emissions” as “aggregate quantity of greenhouse gas emissions (including direct emissions and significant indirect emissions, such as significant emissions from land use changes), as determined by the Executive Officer, related to the full fuel life cycle, including all stages of fuel and feedstock production and distribution, from feedstock generation or extraction through the distribution and delivery and use of the finished fuel to the ultimate consumer, where the mass values for all greenhouse gases are adjusted to account for their relative global warming potential”); Or. Rev. Stat. § 468A.266(2)(b) (2018) (authorizing the Oregon Environmental Quality Commission to adopt “[s]tandards for greenhouse gas emissions attributable to the fuels throughout the lifecycles of the fuels, including but not limited to emissions from the production, storage, transportation and combustion of the fuels and from changes in land use associated with the fuels”). As indicated in note 11, supra, the EPA, California, and Oregon have all adopted models to calculate life-cycle GHG emissions. We also note with (continued. . .)

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“sudden change of direction lead[ing] to undue hardship for

those who had relied on past policy,” two cases guide this

court’s inquiry: Application of Hawaiian Elec. Co., 66 Haw.

538, 669 P.2d 148 (1983) (“Lifeline Rates”), and In re

Application of HECO, 81 Hawaiʻi 459, 918 P.2d 561. Both are

cases in which this court held the PUC did not abuse its

discretion by proceeding through adjudication rather than rule-

making.

In Lifeline Rates, HECO initiated a rate case seeking to

increase its rates. 66 Haw. at 539, 669 P.2d at 150. Two

community groups intervened and asked the PUC to establish

lifeline rates under a federal statute. Id. Thereafter, the

PUC treated the case as a contested case, placing the burden of

proof on intervenors, holding an evidentiary hearing, and

entering detailed findings of fact and conclusions of law before

declining to implement lifeline rates. 66 Haw. at 540, 669 P.2d

(continued . . .) approval that the PUC has recently asked the Hawaii Natural Energy Institute (“HNEI”) to “conduct a study to provide estimates for the lifecycle greenhouse gas (GHG) emissions of various energy products and production technologies in Hawaii,” including SNG and LNG, to assist it in decision making under HRS § 269-6(b). The PUC asked HNEI to develop the “boundary conditions” to “explicitly identify processes to be included” in a life-cycle analysis, such as “mining, transportation of raw and finished materials, manufacturing, electricity production, and end-of-life disposal.” Letter from James P. Griffin, Ph.D, chair of the PUC, et al. to Richard E. Rocheleau, Director of HNEI (Aug. 28, 2019), available at https://puc.hawaii.gov/wp-content/uploads/2019/08/08.28.19-Letter-to- Director-Rocheleau_Lifecycle-Analysis-Task-Force-Request.pdf, also available at https://perma.cc/38NK-MCWK.

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at 150. The intervenors appealed, arguing “that the [PUC]

should have somehow told them what they must prove.” 66 Haw. at

540, 669 P.2d at 151. This court framed the intervenors’

argument to be “that it was error for the [PUC] to proceed by

way of a contested case hearing (although they did not object

thereto) and that the [PUC] instead should have adopted rules

pursuant to § 91-3, HRS.” 66 Haw. at 541, 669 P.2d at 151.

This court affirmed the PUC’s order and rejected the

intervenors’ argument as follows:

In this case, the appellants accepted, without objection, the contested case procedure and, in fact, took their appeal based on statutes which provide for appeals from an “order” in a contested case. That being so, we will not here entertain their alternative contention that the “order” entered was instead a “rule” which should have been differently handled.

Moreover, if what appellants desired was the promulgation of a “rule” by the PUC, they should have proceeded by petition for the adoption of such rule pursuant to § 91-6, HRS. The agency then would have been obliged within 30 days to either deny the petition, stating its reasons in writing for the denial, or initiate proceedings in accordance with § 91-3, HRS. Id.

Similarly, in In re Application of HECO, this court again

rejected community intervenors’ argument on appeal that the PUC

impermissibly engaged in rule-making in the guise of

adjudicating a contested case. 81 Hawaiʻi 459, 918 P.2d 561. In

that case, HECO applied to the PUC for permission to commit

funds to construct high-voltage overhead transmission lines. 81

Hawaiʻi at 461, 918 P.2d at 563. The intervenors argued, among

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other things, that the transmission lines should be placed

underground. 81 Hawaiʻi at 463, 918 P.2d at 565. In its

Decision and Order, the PUC declined to require HECO to place

its transmission lines underground,

unless (1) there [was] a compelling reason (which outweighs the cost) to place the lines underground or (2) there is a stated public policy requiring the lines to be laid underground or (3) the ratepayers as a whole consent to bear the high cost of putting the lines underground. . . . That placing the transmissions lines overhead may obstruct one’s view plane, in and of itself, is not sufficient cause to require the ratepayers to bear the cost of laying the lines underground.

81 Hawaiʻi at 464, 918 P.2d at 566.

The intervenors appealed, arguing that the “PUC violated

HAPA by failing to properly promulgate rules to establish when

transmission lines will be placed underground.” 81 Hawaiʻi at

465, 918 P.2d at 567 (footnote omitted). In other words, they

argued “that what would qualify as ‘additional justification’ or

criteria is clearly a statement of policy by the PUC, thereby

requiring a rule-making proceeding prior to a contested case

hearing under HAPA.” 81 Hawaiʻi at 466, 918 P.2d at 568.

After analogizing the intervenor’s case to Lifeline Rates,

this court similarly concluded that no undue hardship existed,

because (1) intervenors participated in the contested case

without objection; (2) they took their appeal from the PUC’s

order pursuant to HRS §§ 91-14 and 269-16(f); (3) they should

have proceeded by petition for the adoption of a rule under HRS

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§ 91-6 if the promulgation of a rule was what they desired; (4)

the contested case process afforded them extensive procedural

opportunities to support their position; and (5) the PUC entered

detailed findings of fact and conclusions of law. In re

Application of HECO, 81 Hawaiʻi at 470-71, 918 P.2d at 572-73

(footnotes omitted).

Similarly, in this case, the Appellants participated in the

contested case format without objection (by filing their motions

to intervene); took their appeal under statutes governing

appeals of contested case orders issued by the PUC, HRS §§ 91-14

(2012 & Supp. 2016) and 269-15.5 (2007 & Supp. 2016); should

have initiated a rule-making petition if that is what they

desired (as it appeared in LOL’s testimony early on that it

sought to have the PUC adopt the CAS methodology for measuring

GHG emissions); and were afforded the procedural benefits

(though limited) of participating in a contested case, through

the opportunities to, among other things, propound information

requests to HG and to brief sub-Issue No. 1h. Lastly, the PUC

entered detailed findings of fact and conclusions of law. Thus,

under both Lifeline Rates and In re Application of HECO, the

Appellants “cannot now be heard to complain that they suffered

undue hardship” due to whatever perceived rule-making they

believe the PUC engaged in. 81 Hawaiʻi at 471, 918 P.2d at 573

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(footnote omitted). In sum, the PUC did not abuse its

discretion in adjudicating HG’s rate case.

E. Native Hawaiian traditional and customary rights

The Appellants allege that the PUC did not fulfill its

constitutional obligation to protect KLM’s native Hawaiian

customary and traditional rights under article XII, section 7 of

the Hawaiʻi Constitution, which provides the following:

The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupuaʻa tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights.

As indicated above, Appellants assert various impacts to native

Hawaiian cultural practices.

In Matter of Conservation District Use Application HA-3568,

143 Hawaiʻi 379, 431 P.3d 752 (2018) (“Mauna Kea II”), we

reaffirmed “the State’s obligation to protect the reasonable

exercise of customary and traditionally exercised rights

of Hawaiians to the extent feasible.” 143 Hawaiʻi at 395, 431

P.3d at 768, citing Public Access Shoreline Hawaii v. Hawaiʻi

Cty. Planning Comm’n, 79 Hawaiʻi 425, 450 n.43, 903 P.2d 1246,

1271 n.43 (1995).

Because the PUC improperly curtailed Appellants’

substantive participation, the record is not sufficiently

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developed for us to address this issue. On remand, the PUC

should consider its constitutional obligations.

F. The State’s public trust resources

Appellants also argue that the PUC failed to fulfill its

affirmative obligations as a public trustee over the state’s

natural resources under article XI, section 1 of the Hawaiʻi

State Constitution, which provides the following:

For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaii’s natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State.

All public natural resources are held in trust by the State for the benefit of the people.

As we reiterated in Mauna Kea II, a state agency must

perform its functions in a manner that fulfills the State’s

affirmative obligations under the Hawaiʻi constitution. 143

Hawaiʻi at 387, 431 P.3d at 760. We also note, however, that HG

and the PUC’s reliance on the ICA’s decision in In re Molokai

Pub. Utils., 127 Hawaiʻi 234, 277 P.3d 328 (App. 2012), to argue

that a rate case does not trigger a state agency’s public trust

obligations where there is no change in use of the public trust

resource, is misplaced. That case was effectively overruled by

this court’s decision in Ching v. Case, 145 Hawaiʻi 148, 177–78,

449 P.3d 1146, 1175–76 (2019), in which we held that the state

has a continuing duty to monitor the use of trust property, even

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if the use of the property has not changed. See also Lānaʻians

for Sensible Growth v. Land Use Comm’n, 2020 WL 2511131, at *7

(Haw. May 15, 2020) (noting that the LUC possesses a continuing

constitutional obligation to ensure that measures it imposes to

protect public trust resources are implemented and complied

with). Thus, the PUC's constitutional obligations are ongoing,

regardless of the nature of the proceeding.

Again, because the PUC improperly curtailed Appellants’

V. Conclusion

For the foregoing reasons, we vacate the PUC’s Decision and

Order No. 35969 and remand this case to the PUC for further

proceedings consistent with this opinion.

Lance D. Collins /s/ Mark E. Recktenwald for Appellants /s/ Paula A. Nakayama David Y. Nakashima (Jeffrey T. Ono and /s/ Sabrina S. McKenna John E. Dubiel with him on the briefs) /s/ Richard W. Pollack for Appellee Hawaiʻi Gas

Andrew D. Goff (Clare E. Connors and Bryan C. Yee with him on the briefs) for Appellee Public Utilities Commission