Hu Honua Rebuffed: The on-again, off-again dispute over the Hu Honua power plant just north of Hilo is now on again. This comes after Hu Honua itself sought to postpone – possibly for months – the scheduled start of a hearing before the state Public Utilities Commission on the greenhouse-gas impact of the 28-megawatt plant, to be powered with biomass from plantations on the Big Island.
Just days before the January 31 scheduled start of the hearing, Hu Honua attorney Bruce Voss filed an appeal with the state Supreme Court, challenging a decision by the PUC about the applicability of Act 82, passed by the Legislature last year. Voss argued that the new language means that the PUC should not consider emissions from biofuel projects, but only those from plants burning fossil fuels.
Other parties to the PUC proceeding – Life of the Land and Tawhiri Power – submitted briefs supporting the PUC’s order. The state Consumer Advocate also disagreed with Hu Honua, arguing further that its pleading was precluded by the PUC’s rules barring successive motions for reconsideration.
A day after the initial appeal was filed, Life of the Land attorney Bianca Isaki filed a motion to dismiss, calling Hu Honua’s appeal a “last-ditch attempt to prevent the commission from holding an evidentiary hearing on greenhouse gas emissions.” In addition, Isaki lodged a request for a speedy decision on Hu Honua’s appeal, including an affidavit from Henry Curtis of Life of the Land. In it, Curtis suggests that the real reason for the appeal was the announcement on January 7 that PUC chair Jay Griffin would be leaving the commission at the end of June. This, Curtis states, creates “an opportunity for Hu Honua to exercise its political influence over the selection of a new third member of the commission.”
On February 4, the Supreme Court obliged. All five justices agreed to reject Hu Honua’s appeal, finding that there was no final appealable decision before it, calling Hu Honua’s appeal “particularly outlandish, because for months Hu Honua assented to and complied with the PUC’s procedural schedule.”
(Environment Hawaiʻi has published extensively on this subject. A complete list of past articles is available on our website. Use the search engine to find articles on Hu Honua.)
Fuel Spill Records: On February 2, 1st Circuit Judge Jeffrey Crabtree heard arguments on a motion for summary judgment filed by the Sierra Club of Hawaiʻi regarding documents held by the state Department of Health.
Last October, the Sierra Club filed a complaint alleging that the department had failed to adequately respond to the group’s request for records regarding the fuel spill or spills at Hotel Pier in Pearl Harbor last year that are believed to have stemmed from the U.S. Navy’s Red Hill bulk fuel storage facility.
The Sierra Club is a petitioner in an ongoing contested case hearing over the Navy’s proposed permit to continue operating the Red Hill facility, and the organization believed the Hotel Pier records were relevant to the case proceedings.
Widespread contamination of the Navy’s potable water system with fuel from Red Hill last November has since superseded concerns over the permit, as the Health Department issued an emergency order requiring the Navy to empty the tanks.
Even so, the Sierra Club still believes the DOH should provide some of the records it had requested.
In a January 5 filing, Sierra Club attorney David Kimo Frankel noted that the organization “does not wish to prolong the fight over these documents or unnecessarily burden the Department of Health.” He also conceded that the department had provided some redacted documents and that federal law allows the Department of Defense to “retain control over documents provided to the Department of Health.”
Frankel suggested that the DOH could release records such as internal emails not protected by the attorney-client privilege, letters and emails the DOH sent to the Navy, reports made by the Navy in March 2020 to the department, and internal Navy emails that a whistleblower provided to the department.
A status hearing has been set for March 2 regarding the delivery of internal emails, materials provided by the whistle blower, and other outstanding Defense Department documents. The DOH must file a supplemental brief by February 18, and Frankel must submit a status report and supplemental response by February 24.
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