Hu Honua Re-Remand: The Hawaiʻi Supreme Court has tossed back to the Public Utilities Commission – for a second time – a decision in the case of the Big Island biomass power plant. The first court case, resolved in 2019, found the PUC at fault for failing to allow Life of the Land to raise the issue of the plant’s life-cycle greenhouse gas emissions in its deliberations.
On remand, the PUC never got to the point of weighing the impacts of the plant on climate change. Instead, it determined that the waiver of the bid requirement that Hu Honua was granted when the commission first considered its request – back in 2008 – was no longer valid.
This time, Hu Honua appealed, challenging the PUC’s decision to void the waiver. Last month, the court issued its unanimous ruling. By not considering greenhouse gas emissions at all but by preemptively voiding the waiver, the PUC had not complied with the court’s earlier ruling, requiring it to weigh greenhouse-gas impacts of the plant’s operations.
In its conclusion, the court reaffirmed its order in the first case, quoting from that ruling: The PUC hearing on remand must “include express consideration of [greenhouse gas emissions] that would result from approving the [power-purchase agreement, or PPA], whether the cost of energy under the [PPA] is reasonable in light of the potential for GHG emissions, and whether the terms of the [PPA] are prudent and in the public interest, in light of its potential hidden and long-term consequences.”
Maui Water Win: First Circuit Judge Jeffrey P. Crabtree has sided with the Sierra Club, Hawaiʻi Chapter, in its lawsuit over the Board of Land and Natural Resources’ ongoing issuance of year-to-year revocable permits for water use to Alexander & Baldwin and its related companies. The permits allow the diversion of up to 45 million gallons a day from four areas in East Maui.
On May 28, Crabtree issued an interim order finding that the club’s due process rights were violated when the board approved the renewal of the RPs last November. The club had asked for a contested-case hearing on the extensions, but the board denied the request.
Last year, Crabtree heard arguments in an earlier Sierra Club challenge of the permits awarded in 2018 and 2019. In his decision in that case, handed up in early April, Crabtree upheld the RPs, agreeing with the state and the diverters (A&B and Mahi Pono) that the new, diversified agricultural uses on land irrigated with the East Maui water deserved some time to figure out actual water needs.
Crabtree addressed the apparent disconnect between that decision and the one issued in late May, writing: “Defendants’ arguments that Sierra Club already got the required due process because water permits were litigated in a trial in this court in 2020 are not persuasive. … [T]he Sierra Club offered or had available to it new evidence on the permit renewals – information and issues which apparently arose after the trial. As just one example, [the Department of Land and Natural Resource’s] own Division of Aquatic Resources recommended that restoring four more of the streams should be a high priority. In addition, more recent reports showed significantly less water was needed for off-stream uses than previously estimated, yet the proposal for the revocable permit extensions was to take more water out of the streams, not less.”
While Crabtree ordered the RPs vacated, he stayed the effective date of that order to June 30. During this time, the parties may submit to the court requests “on whether or not the court should modify the existing permits, and how, or whether the court should leave the existing permits in place until their current expiration date.” “If no such further requests are filed by 4:00 p.m. on Wednesday, June 30, 2021, the stay … is lifted” and the revocable permits “shall automatically be vacated without further order of this court.”