New & Noteworthy: Hu Honua

posted in: January 2018 | 0
Hu Honua plant.

Hu Honua Challenge: The power plant being rebuilt along the Hamakua Coast just north of Hilo is facing yet another challenge, this time from an individual, Claudia Rohr. In late November, Rohr, representing herself, filed a complaint against the County of Hawai‘i Windward Planning Commission and the county Planning Department, arguing that the county should have required Hu Honua to prepare an environmental assessment or environmental impact statement before the Public Utilities Commission considered the most recent power purchase agreement between Hawaiian Electric Light Company and Hu Honua.

According to Rohr, the 1985 Special Management Area permit that was issued to the previous plant operator, Hilo Coast Processing Company, allowing it to convert fuels from bagasse to coal, was amended after 2010, when Hu Honua began work on the plant. But, Rohr argues, since then, there have been several additional changes in the plant’s operation, including a projected useful lifespan of 30 years now instead of 20, that should have caused the county to undertake a review as to whether Chapter 343, Hawai‘i’s environmental policy act, had been triggered.

“The A&R PPA [Amended and Restated Power Purchase Agreement] requires an essentially different action than the Hu Honua project that was proposed in 2010,” she writes, resulting in “a greater possibility of significant environmental impacts arising from the substantial changes to the design and operating agreement of the Hu Honua project.”

The PUC approved the new power purchase agreement in late July. A month later, Life of the Land appealed the PUC’s decision to the Hawai‘i Supreme Court. As described by Henry Curtis, the group’s executive director, the PUC order approving the PPA was flawed by “the total lack of any analysis, let alone any mention of greenhouse gas emissions.” As a party to the proceedings before the PUC, Life of the Land had attempted, unsuccessfully, to raise the issue.

A Landmark Decision: A recent decision by the state’s highest court could have a bearing on that challenge to the Public Utilities Commission’s decision on the Hu Honua agreement. Last month, a majority of the justices found that the PUC had violated rights guaranteed by the state Constitution when it refused to grant the Sierra Club intervenor status in a case involving approval of a power-purchase plan between Maui Electric (MECO) and the now-closed power plant owned by Hawai‘i Commercial & Sugar Co. (HC&S).

“This case raises the issue of whether the protections of the [constitution’s] due process clause apply to the right to a clean and healthful environment, as defined by laws related to environmental quality,” the majority opinion stated. “We hold that, under the circumstances of this case, the petitioners asserted a protectable property interest in a clean and healthful environment as defined by environmental regulations; that the agency decision adversely affected this interest; and that a due process hearing was required given the importance of the interest, the risk of an erroneous deprivation, and the governmental interests involved.”

In language that may bode well for the Life of the Land’s chance of success in the Hu Honua case, the court specifically mentioned greenhouse gases as a factor in protecting the public’s interest in a “clean and healthful environment.” State law, the justices wrote, required the PUC to weigh “the hidden and long-term costs of energy produced at the [HC&S] plant, including the potential for increased air pollution as a result of greenhouse gas emissions.”

A statement released by Earthjustice, which represented the Sierra Club, noted that the HC&S plant “was burning up to 25 percent coal over the course of a year to meet its power production obligations to MECO. In 2014, the state Department of Health assessed a $1.3 million fine against HC&S for more than 400 clean-air violations at the plant.”

Given that the plant has already closed, what impact does the decision remanding the case to the PUC have? “The issue of what happens on remand is less important than the precedent we now have for future cases,” said Earthjustice attorney Isaac Moriwake.

Environmental Council Rules: The state’s Environmental Council has drafted revisions to the rules governing the preparation of environmental assessments and environmental impact statements. The public may comment on the proposed changes until January 12.

The revisions have been posted in Ramseyer-like format on the council’s webpage. Comments may be made online directly from the draft rules or may be submitted in more traditional form to the DOH.

For more information and a link to the draft rules, see: http://health.hawaii.gov/oeqc/ rules-update/

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