Description: Biomass power plant developer's challenge to Hawai'i Public Utilities Commission's denial of approval to supply energy to Hawaiʻi Island.
In re Hawai‘i Electric Light Co.
Filing Date Type File Action Taken Summary 03/13/2023 Opinion Download Concurring opinion issued in affirmance of decision rejecting power purchase agreement for biomass facility to supply energy to Hawai'i Island. Associate Justice Michael D. Wilson joined the majority’s opinion but also authored a concurring opinion holding that the right to a life-sustaining climate system was derived not only from Hawai‘i Constitution’s enumerated right to a clean and healthful environment but also from the Hawai‘i Constitution’s due process clause and public trust doctrine. Regarding due process, the concurrence stated that “[i]t is beyond cavil that a life-sustaining climate system is implicit in the concept of ordered liberty and lies ‘at the base of all our civil and political institutions.’” With respect to the public trust doctrine, the concurring opinion found that the climate system “is a ‘natural resource’ held in trust by the State for the benefit of present and future generations,” and that to act in accordance with its public trust and statutory obligations, the PUC “must make reduction of greenhouse gas emissions the primary consideration” in determining whether to approve energy deals such as the one at issue in this case. 03/13/2023 Opinion Download Public Utilities Commission's decision rejecting power purchase agreement between Hu Honua and the Hawaiʻi Electric Light Company, Inc. affirmed. Hawai‘i Supreme Court Finds State Constitution’s Environmental Rights Clause Encompasses Right to a Life-Sustaining Climate System, Supporting State Rejection of Biomass Energy Deal. On March 13, 2023, the Hawai‘i Supreme Court affirmed the Public Utilities Commission’s (PUC’s) denial of approval for the energy company Hu Honua Bioenergy, LLC (Hu Honua) to provide power for Hawai‘i Island’s electric grid from a proposed biomass energy facility. The court found that the PUC had “faithfully followed” the court’s remand instructions in a 2019 decision that vacated the PUC’s 2017 approval of the deal. The 2019 decision directed the PUC to give a community action group an opportunity to “meaningfully address” the project’s potential impacts on the groups’ members right to a clean and healthful environment. The 2019 decision also instructed the PUC to give “express consideration” to greenhouse gas emissions that would result from the project, and also to whether the cost of energy was reasonable in light of potential greenhouse gas emissions and whether the deal’s terms were “prudent and in the public interest.” In its 2023 decision, the Supreme Court first found that the PUC’s consideration of pricing was appropriate, given the court’s explicit remand language and the PUC’s constitutional duty to act in the public interest. The court next rejected Hu Honua’s contention that the PUC could only compare the biomass facility’s greenhouse gas emissions and other characteristics with those of fossil fuel plants, and not with other types of renewable energy projects. The court found that Hawai‘i Legislature intended to require the PUC to consider climate change and to reduce emissions. Regarding Hu Honua’s argument that recent amendments to the PUC’s governing statute barred the PUC from considering greenhouse gas emissions from biomass, the Supreme Court noted that the governing statute defined the Hawai‘i Constitution’s “right to a clean and healthful environment, which encompasses the right to a life-sustaining climate system,” and that disregarding greenhouse gas emissions from biomass would undermine this mandate. Finally, the court rejected Hu Honua’s argument that the PUC violated the company’s due process rights, including by creating a carbon neutrality requirement. The court first noted that it was Hu Honua, not the PUC, that “introduced the idea of carbon neutrality into the proceedings” by promising to offset its greenhouse gas emissions by planting trees. The court also indicated that even if the PUC adopted a carbon neutrality standard, “it is not so clear that the agency would have erred,” given the PUC’s constitutional obligation to protect the “affirmative” and “constantly evolving” right to a life-sustaining climate system. The court cited the people of Hawai‘i’s legislative declaration of a “climate emergency” and described the “immediate threats” faced by the state, including sea level rise and ocean warming and acidification. The court stated: “The reality is that yesterday’s good enough has become today’s unacceptable. The PUC was under no obligation to evaluate an energy project conceived of in 2012 the same way in 2022. Indeed, doing so would have betrayed its constitutional duty.”