The Hawaii Supreme Court is attacking Hu Honua in his latest appeal

The two-hour hearing addressed the legal claims of the tree burning project after the PUC denied its approval.

The state judges put a series of tough and skeptical questions to attorneys for Hu Honua and the Hawaii Electric Light Company on Tuesday.

The questions, which centered on potentially high costs to consumers and greenhouse gas emissions, came during the hearing in Hu Honua’s appeal against the Hawaii Public Utilities Commission’s rejection of a 30-year power purchase agreement. This deal would have made it possible to commission the planned biomass power plant on the island of Hawaii.

Supreme Court Justices held hearings at UH Richardson Law School in the case of Hu Honua, the PUC and HELCO. (David Croxford/Civil Beat/2023)

The battle to open the near-completed power plant, located about 10 miles north of Hilo, has dragged on for years and has been challenged twice in the state Supreme Court.

Hu Honua’s lawyers alluded to the long struggle in their Dec. 28 response to the court, calling it “another déjà vu.” The company says its third appeal to the Supreme Court raises the same questions: Did the PUC comply with the law or did it exceed its authority?

During Tuesday night’s hearing at the University of Hawaii’s William S. Richardson School of Law in Manoa, Hu Honua’s attorney, Bruce Voss, said the PUC exceeded its authority when it decided in May to reject the power purchase agreement.

Bruce Voss, an attorney for Hu Honua, says the PUC exceeded its powers by rejecting the power purchase agreement. (David Croxford/Civil Beat/2023)

He said the PUC erroneously reviewed the overall cost and pricing structure of the tree burning project when it should have adhered to the greenhouse gas emissions issue. In other words, even though Hu Honua would add an estimated $10 per month to the average consumer’s bill if it went live, the PUC should not have considered that because it wasn’t an issue raised in the 2018 appeal became.

Voss’ reasoning prompted Chief Justice Mark Recktenwald to question whether the attorney believes consumer utility bills are a matter of public interest, and if so, the Commission has no responsibility to take that into account.

Supreme Court Chief Justice Mark Recktenwald during the Mental Health Summit interview.
Supreme Court Chief Justice Mark Recktenwald asked Hu Honua why he thought the company’s impact on utility bills was not a matter of public interest. (Cory Lum/Civil Beat/2019)

Voss said no because the specific law the court used to refer the case back to the PUC in 2017 didn’t concern electricity prices, but rather dealt with the need to reduce the state’s reliance on fossil fuels, which Hu Honua arguably did would do.

Seeking clarification, Judge Todd Eddins made another attempt to ask Voss about the prize issue and the PUC’s role in the trial.

Judge Todd Eddins Nominated by Governor Ige for the Hawaii Supreme Court.  October 23, 2020
Hawaii Supreme Court Justice Todd Eddins wanted to know why Hu Honua doesn’t think the PUC should consider pricing when making its decision. (David Croxford/Civil Beat/2023)

“Aren’t they free or even required to consider pricing and the adequacy of that pricing in terms of (greenhouse gas emissions)?” Eddins asked.

“I don’t think so,” said Voss.

Most of the questions that followed revolved around greenhouse gas emissions that the plant would release into the atmosphere by burning eucalyptus trees.

Judge Michael Wilson repeatedly brought up the fact that the Hawaiian legislature was the first in the nation to declare a climate emergency in 2021 and passed legislation committing the state to be carbon neutral by 2045.

The plant at Hu Honua would primarily burn eucalyptus to generate electricity. (Cory Lum/Civil Beat/2022)

Given the scale of the emergency and the need for urgent action to protect the environment, wouldn’t the precautionary principle require the PUC to account for greenhouse gas emissions “as the emergency becomes more serious”? asked Wilson.

Voss said it’s a balancing act, and the PUC essentially put their finger on one side of the scale and told Hu Honua, “You lose.”

A key reason the PUC cited in rejecting Hu Honua’s PPA application was that his plans to capture carbon and make the plant carbon-neutral were speculative and lacked credibility.

Judge Sabrina McKenna asked Voss for a statement he made regarding the $519 million investment by Hu Honua’s financiers in the project to date.

She asked if his mention of this investment indicated that Hu Honua had “some kind of acquis” to get a power purchase agreement from the PUC.

“Hu Honua has ownership rights, but that’s another argument for another day,” Voss said.

The court adjourned shortly after 7 p.m. The chief justice did not say when a decision on Hu Honua’s appeal would be forthcoming.

Civil Beat’s climate change reporting is supported by the Hawaii Community Foundation’s Environmental Funders Group, the Hawaii Community Foundation’s Marisla Fund, and the Frost Family Foundation.