A lawsuit seeking to stop Puna Geothermal Venture from drilling at night will go forward.
Hilo Circuit Judge Greg Nakamura on Tuesday denied PGV’s motion to dismiss the lawsuit brought by Puna Pono Alliance and Leilani Estates residents Jon Olson and Hillary E. Wilt.
Nakamura also denied Hawaii County’s request to be dismissed as a defendant. The county is named for not enforcing its own ban on nighttime drilling.
Nakamura told the parties the state also should be brought in to clarify who has authority over issues brought up by the lawsuit’s plaintiffs.
“It’s not clear to me what entity makes what decisions,” Nakamura said.
The state is not a defendant in the court action against PGV and the county.
An ordinance passed by the County Council in 2012 bans geothermal drilling from between the hours of 7 p.m. and 7 a.m. and says “geothermal production drilling operations being conducted one mile or less from a residence” shall comply with the time restriction. There are multiple homes within that distance of PGV.
PGV is in the process of drilling a well it says requires nighttime work. Mike Kaleikini, PGV’s senior director of Hawaiian affairs, said in March putting time restrictions on drilling could affect the mechanical integrity of the well or create a gas buildup.
“It has to do with safety first,” he said at the time.
The plaintiffs argue the noise from nighttime drilling creates an unreasonable disturbance to nearby residents.
Olson said after the hearing drilling could happen at any hour.
“You can hear the drilling at one in the morning,” he said. “It happens all the time.”
PGV has maintained its geothermal resource permit provides it with “vested rights,” and the county ordinance doesn’t apply.
PGV’s attorney, Thomas Yeh, told the judge the ordinance “is pre-empted by state law and the comprehensive framework that exists.”
“Those (state) drilling permit regulations apply to all lands and all drilling occurring within the state of Hawaii,” he said.
Nakamura asked Deputy Corporation Counsel Lerisa Heroldt if the county thinks the nighttime drilling ban is enforceable.
“The county’s position is that it’s pre-emptable,” Heroldt replied.
“…Who has the ultimate authority to make the determination what the county’s official position is?” the judge inquired.
“I don’t know. Not my office,” Heroldt answered.
“So, could be the planning director, could be the police, could be the mayor, could be the council,” Nakamura said. “OK, so there’s some difficulty there.”
Gary Zamber, the attorney representing the plaintiffs, argued that with vested rights come “vested responsibilities and vested duties.”
He quoted a provision in PGV’s lease stating “the lessee shall comply with all valid requirements of municipal, state and federal authorities and shall observe all municipal, state and federal laws and regulations pertaining to the leased lands and lessee’s operations thereunder, now in force, or which may hereafter may be in force.”
Nakamura said he wants the state to weigh in before any decision is made about whether the county’s drilling ban is enforceable against PGV.
“The court believes it should retain jurisdiction because the pre-emption issue requires determination by two different governmental entities, at least two, and so it’s probably best that state and county governments take an official position as to what their positions are in regards to this matter, and the matter be addressed in a single venue, or a single forum, which is this court,” he said.
Email John Burnett at jburnett@hawaiitribune-herald.com.
