HAWSCT: PUC Must Consider Whether Renewable Biofuel Energy Plant Might Impact Property Right To Clean And Healthful Environment

by Robert Thomas, InverseCondemnation, May 14, 2019

On one hand, there's nothing really new in the Hawaii Supreme Court's opinion in In re Hawaii Electric Light Co., No. SCOT-17-630 (May 10, 2019), because the court has previously told us the answers to each the component questions in the case:

• On the ultimate question posed in the title, must the PUC consider whether a power purchase agreement for a Big Island "woody biomass" electric plant might have an effect on a clean and healthy environment by affecting the utility's willingness to purchase electricity generated by more "pure" means such as wind and solar: you don't need to read the 66 page unanimous opinion to know the answer: of course it has to. The statute mostly says so, and you didn't need a deep understanding of the other details in the case to be able to predict about how this one was going to end up, merely the court's history in these kind of cases. Especially where the court was asked to make a procedural ruling, and not one on the merits. 
• The court has already repeatedly told us that an agency must allow third party participation in the decision-making process -- including costly and time-consuming administrative trials ("contested cases" in Hawaii's legal parlance) -- if a statute or rule says the agency must hold some kind of public hearing or if the third party can even remotely claim it has a property interest that possibly could be affected by the agency's decision. Here, it was enough that the energy plant might possibly have some environmental impact (yes, we're being that obtuse on purpose), and that the environment "concerns" the intervenors.  
• The court has already held that the provision in the Hawaii Constitution which sets out the right of everyone to a clean and healthful environment is such a property right, entitling anyone with standing -- an exceedingly low hurdle to clear under Hawaii law -- to procedural due process.   
• The court had also already repeatedly held that an appeal of the agency action to the courts under the Administrative Procedures Act may be taken by any party dissatisfied by the result of an agency hearing, or who is not given an agency hearing. (One thing new in this case: the intervenor doesn't even have to request a contested case, merely intervene. See slip op. at 41-43.)

If those points are all you want to know, there's no need for a deeper dive into the opinion.

But to us, what is new and interesting about this one is the court's conclusion that the property right to a clean and healthful environment not only requires the PUC to conduct an administrative trial, but that as part of the trial, the agency must expressly consider "the reduction of [greenhouse gas] emissions,' which the intervenor third-party Life of the Land (unfortunately abbreviated to "LOL" by the court) asserted were "hidden and long-term costs of the [proposed] facility." Slip op. at 34. It wasn't enough that the PUC determined that the proposed renewable biomass facility would lessen reliance on fossil fuels, it had to expressly consider the argument and respond to it:  

In its findings and conclusions, the PUC found that Hu Honua’s biomass facility may displace fossil fuel generation resources and accelerate the retirement of fossil fuel plants, and noted that its decision to approve the Amended PPA was based on “factors such as the State’s need to limit its dependence on fossil fuels and mitigate against volatility in oil pricing.” These findings and conclusions do not constitute “express consideration” of the reduction of GHG emissions, as provided for under HRS § 269-6(b).

Slip op. at 52-53. 

That sounds remarkably similar to the "burden is on the applicant to disprove all possible impacts" standard which the court has imposed under the public water trust. In short, it's the precautionary principle writ large: when there's any doubt raised, its never a mistake for the agency to deny the requested action. If this impacts the delivery or price of electricity on the Big Island, then so be it; thank the Hawaii Legislature for amending the PUC's statute in 2011 to require the agency to "consider the hidden and long-term costs of reliance on fossil fuels[.]" Slip op. at 50. 

PDF: In re Hawaii Electric Light...