UPDATE: The Public Utilities Commission issued an order late Wednesday, after Tribune-Herald deadline, temporarily suspending proceedings, including an evidentiary hearing on the Honua Ola project scheduled for next week, “pending further details” on Honua Ola’s appeal to the Supreme Court.
Honua Ola Bioenergy President Warren Lee said he was “pleased the PUC has suspended the proceedings, including the evidentiary hearing, in recognition” of the appeal.
In addition, Life of the Land has filed a motion requesting the high court dismiss Honua Ola’s appeal, citing a “lack of appellate jurisdiction.”
Life of the Land argues that Honua Ola’s appeal is improper without a final PUC decision on its case. The document also accuses Honua Ola of lodging the appeal “for an improper purpose of delay.”
Life of the Land’s motion notes PUC Chairman James Griffin’s service will end on June 30, “creating an opportunity for (Honua Ola) to use its political influence over the selection of a new third member of the Commission.”
PREVIOUSLY:
The primary opponent to Honua Ola Bioenergy’s attempt to take its biomass power plant online called the company’s appeal to the state Supreme Court to halt Public Utilities Commission evidentiary hearing slated for next week “a last minute attempt to stop cross-examination of witnesses.”
“They’ve moved for a contested case (hearing) for a number of months, saying that the commission should move faster and get going. And now, just when it’s about to happen, they’re trying to put the brakes on it,” Henry Curtis, executive director of the environmental group Life of the Land, told the Tribune-Herald Wednesday.
The appeal filed Monday is the third time Honua Ola, formerly known as Hu Honua, has been before the state’s high court in its quest to gain approval from the PUC for its $474 million, almost-completed wood-burning plant in Pepeekeo.
In addition, Honua Ola filed an emergency motion Wednesday for a stay of proceedings, requesting the high court halt the PUC’s planned hearings in the case until the court can hear the power plant’s appeal.
The PUC on Jan. 13 denied Honua Ola’s Jan. 6 motion to postpone the hearings to be held virtually between Jan. 31 to Feb. 3 to an unspecified future date when in-person hearings can be held. That denial led to Monday’s appeal to the Supreme Court.
In its appeal, Honua Ola said the PUC “fully intends to kill (Honua Ola’s) renewable energy project again, without a fair and meaningful opportunity to be heard, even though the half-billion dollar project is 99% complete and ready to provide the state of Hawaii with myriad environmental and economic benefits.”
In the motion for a stay of proceedings, Honua Ola alleges the PUC’s “determination to kill the project by any means … violates (Honua Ola’s) right to equal protection.” It also alleges the regulatory panel is violating the biomass company’s right to due process by depriving it of “an opportunity to be heard at a meaningful time and a meaningful manner.”
In addition, the motion also claimed the PUC’s “dogged refusal to provide for such a hearing” will have “a negative impact on the environment” because the project “is in the public’s interest in lowering the state’s reliance on fossil fuels and increasing and diversifying its renewable energy portfolio.”
The high court first considered the project in 2017 after Life of the Land challenged it, with the court ordering the PUC in 2019 to reconsider a power purchase agreement Honua Ola had with Hawaiian Electric.
The court ruled the regulatory panel failed to “explicitly consider” the legal requirement of whether the project meets the state’s goal of reducing greenhouse gases.
At the time, the PUC interpreted the high court’s ruling as nullifying a waiver from the competitive bidding process it had previously granted Honua Ola.
The panel ruled in July 2020 the 30-megawatt power plant’s stated price for electricity in the agreement — about 22 cents per kilowatt hour — wasn’t competitive with the nine cents per kilowatt hour price presented by solar energy projects the PUC had recently approved, again shutting down Honua Ola.
After the PUC denied Honua Ola’s motion to reconsider, the biomass company appealed to the Supreme Court in September 2020. In May 2021, the court remanded the case again to the PUC with orders to hold evidentiary hearings to consider the issue of greenhouse gas emissions.
In Wednesday’s motion to stay the proceedings, Honua Ola said it “should not be forced to go through the motions of an evidentiary hearing that does not comply with the law or the court’s prior instructions, receive a predetermined and erroneous ruling from the PUC, wait another two years for its subsequent appeal to be resolved, and then wait another year or so for the PUC to hold another evidentiary hearing.”
According to Curtis, the notion that a virtual hearing would deprive Honua Ola of its due process rights is “absurd.”
“The Hawaii State Legislature and the Supreme Court are both having virtual hearings,” he said. “So, the question is, why can’t the PUC?
“We look forward to a real evidentiary hearing where all the information can be out on the table and everything can be cross-examined.”
The Tribune-Herald attempted to contact Honua Ola President Warren Lee by phone and email Wednesday, but didn’t receive a reply in time for this story.
Email John Burnett at jburnett@hawaiitribune-herald.com.