Thanks to Henry Curtis (ililani.media) for his partial transcription from oral arguments before the Hawaii Supreme Court in Life of the Land’s challenge to a power purchase agreement between Hawaii Electric (HELCO) and Hu Honua, which was approved by the Public Utilities Commission in 2017.

One key issue in the case case revolves around the Public Utilities Commission’s interpretation of a state law requiring 100% renewable energy by the year 2045.

The provision at issue provides:

HRS §269-6b: “In making determinations of the reasonableness of the costs of utility system capital improvements and operations, the commission shall explicitly consider… greenhouse gas emissions.”

The state’s position appears to be that state law lists biomass as a renewable energy source, and requires shifting away from fossil fuels towards renewable sources. The PUC appears to have assumed that the requirement to “explicitly consider…greenhouse gas emissions” is met “by definition” in the case of a biomass project, and therefore needs no further exploration.

The transcript includes the back and forth between justices and the attorney representing the PUC, Clyde Wadsworth. There are a number of questions posed by the justices which make for interesting reading.

But I think this section of the transcript captures the problem. Of course, questions during oral arguments are a long way from a Supreme Court ruling. But they seem to be focusing in on a problem with the state’s position.

Chief Justice Recktenwald: Mr. Wadsworth, I want to be sure I understand your position. So I`m reading from page 53 of the order where the commission notes Life of the Land is not in favor of commission approval but focuses rational on concerns outside of the scope of its limited participation, namely climate change and comparative pricing with other forms of energy. So, is it the PUC`s argument that state law has already made its judgement that biomass is an appropriate alternative or a renewable energy source, and that if a project is utilizing biomass, and the effects of biomass versus oil consumption or coal use are analyzed, that there is no responsibility or need to assess the impacts of biomass versus perhaps other alternatives, like solar, conservation, or wind. Because that`s what I think I`m hearing you say.I want to be sure I understand your argument.

Solicitor General Wadsworth: I think the argument is somewhat nuanced. More nuanced than that your honor. I mean, certainly the state policy here is to replace fossil fuels with biomass and other renewable energy resources, and the purpose of 269-6b was to ensure that renewable energy plants weren`t disadvantaged by their potentially higher costs as compared to fossil fuel plants by requiring the PUC to take into account the hidden costs of fossil fuel plants such as greenhouse gas emissions. So that`s what their charge is. To respond to the specific statement that is in the decision and order. I think that the commission was frustrated that Life of the Land didn`t tie its general concerns about climate change to the projects displacement of fossil fuels and the commission`s mandate to consider the effect of the state`s reliance on fossil fuels on greenhouse gas emissions and regardless of how the commission characterized Life of the Land`s concerns, the decision and order did, in fact, consider how the project would displace fossil fuel generation and thereby reduce greenhouse gas emissions.

Associate Justice McKenna: But it seems like, you’re arguing two separate things, there`s fossil fuels and then there’s greenhouse gas emissions. Just based on the agricultural, the razing, and it seems to me that there`s an assumption that one tree cut one tree grown its neutral you know but there appear to be issues with that, right?

Solicitor General Wadsworth: And I see that my time is up your honor, but I just want to emphasize, that the state legislature though has taken a position on this, and the position is.

Associate Justice Pollack: The statute is apparently trumped by something else? I mean, the Chief Justice asked you, whether or not greenhouse gas emissions must be considered by the PUC when it makes these kinds of decisions. Does it have to make findings? Does it have to consider?

Solicitor General Wadsworth: It does.

Associate Justice Pollack: Even if its biomass.

Solicitor General Wadsworth: It does, by having to show that fossil fuels would be displaced by renewable energy.

Associate Justice Pollack: So we should read into the statute, where it says greenhouse gas emissions, except if the greenhouse gas emissions results from biomass.

Solicitor General Wadsworth: No. I`m not suggesting that reading your honor. The premise of state law is that fossil fuels are linked to greenhouse gases emissions.
If you displace fossil fuels you displace greenhouse gas emissions.

Chief Justice Recktenwald: My question to you is, end of discussion? Or do you need to look at other impacts of the biomass. Do you have to look at the bigger picture of how much it’s going to impact the environment? Do you need to compare it to other sources?

Solicitor General Wadsworth: I think, based on the statute, that is the end to the discussion.

This is another classic example showing that passing a law to ensure a public good is perhaps necessary, but not sufficient. Staying engaged as that law is interpreted and implemented is necessary to ensure that original public good is really served.

Thanks to Henry and Life of the Land for staying engaged!

A recording of the complete oral arguments before the court is available on the judiciary’s website.