Isaac Pic

TMT Construction – Mauna Kea Controversy Bulldozes the Law

The Thirty-Meter Telescope decision –

Whatever views anyone may have on astronomy or Hawaiian culture on the Big Island, everyone should understand the importance of the Thirty-Meter Telescope legal decision and its application of Hawai‘i state law.  While the recent decision by the Hawai‘i Supreme Court affirming the state conservation land use permit for the Thirty-Meter Telescope on Mauna Kea made big headlines, very few noticed a small but important moment of legal drama that occurred during the several weeks afterward. Tmt Protest

When the Mauna Kea protectors moved for reconsideration of the Court’s decision, Earthjustice, on behalf of Hawaiian cultural practitioner group Kua‘āina Ulu ‘Auamo, and Collette Machado and Dan Ahuna (the Chair and Vice-Chair of the Office of Hawaiian Affairs), filed a supporting “amicus curiae” (friend of the court) brief, urging the Court to correct critical mistakes in its majority opinion that undercut established legal protections of environmental and Native Hawaiian rights.

The Court’s opinion inserted two footnotes that dropped legal bombshells:

  • First, suggesting that Native Hawaiians must bear the burden to prove their rights, exactly opposite to settled precedent that developers and agencies bear the burden to justify any harm to Native Hawaiian rights; and second,
  • endorsing a false and offensive distinction between “contemporary” (read: fake) and “traditional” (read: real) Hawaiian practices.

The opinion further included language suggesting that agencies could limit their analysis of impacts to just the specific project footprint, while disregarding broader harms.  Finally, the opinion offered a cursory analysis of the public trust doctrine, a bedrock constitutional principle that protects all natural resources for present and future generations.   Instead of following the precedent in the landmark Waiāhole case, the Court majority applied its own diluted interpretation suggesting, for example, that community benefit payments could fulfill the public trust.

Earthjustice was not previously involved in the Mauna Kea case, but we were convinced that something needed to be done to mitigate the worst damage from this ruling.  Joining Earthjustice in the brief as co-counsel were former Hawai‘i Supreme Court Justice Robert Klein, who authored several seminal opinions on Native Hawaiian rights, including the Kohanaiki “PASH” case, and Professor Melody MacKenzie, lead author of the Native Hawaiian Law Treatise.

On the deadline for the Court’s response, the justices issued a run of orders specifying changes to its opinions.

The majority deleted the two problematic footnotes.  It also added a footnote clarifying that the agency analysis of impacts is not limited to the project footprint.  While this may seem like much ado about some footnotes, legal practitioners appreciate that when the Court issues its decision, the cement is basically poured, and the Court does not make changes unless a real mistake needs to be corrected.  The language the Court deleted would have plagued the law of environmental and Native Hawaiian rights for years, and we were fortunate to have dodged those bullets.

Fundamental problems with the Court’s ruling remain

For example, the Court majority did not change its flawed analysis of the public trust.  Based on this and other laws, the Court, at minimum, should have sent the case back to the state land board to correct basic legal errors, but the Court instead undermined the law.  Those problems are left for another battle, another day.

The book on this particular legal episode of the TMT controversy is now closed.  But as an esteemed Native Hawaiian professor said at a recent demonstration, “This is just the beginning.”

Again, whatever opinion one may have on the TMT controversy, everyone should contemplate the timeless saying by the famous legal scholar Felix Cohen, analogizing the treatment of Native peoples under the law to the miner’s canary, which “marks the shift of fresh air to poison gas in our political atmosphere; and . . . reflects the rise and fall of our democratic faith.”

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Hawai`i Legislative and PUC Reforms Needed to Correct Power Plant Pollution, Climate & Community Impacts

The controversy surrounding the proposed Hu Honua biomass-to-electricity power plant in Pepeekeo and at the former site of Hilo Coast’s coal-fired electricity power plant could result in new laws linking power plants to their environmental, climate, and social consequences.

The first issue to be decided is which law should be changed?

Dirty Power Plant EmissionsThere are two ways of determining what should trigger an environmental review in the establishment of a new or fundamental changes to an exiting power generation facility.  One is bottom-up, by specifically identifying project types. The second is top down, to include everything and then remove project types that have small impacts. Hawai`i uses a mix of the two types and applies them sometimes in odd ways.   In addition, the application of laws is not always equitable.

The environmental review process, HRS 343, is required for any project that uses “state or county lands or the use of state or county funds,” or is in the conservation district, shoreline management area, or Waikiki. By contrast, a helipad only triggers an environmental review if the helicopter flies over specific types of land. A wastewater treatment unit requires an environmental review if serves 50 small houses but not 49 mansions.

The environmental review process was not required for projects built with private money on agriculturally-zoned land. The naphtha-burning fossil fuel-powered generation station in Honoka`a escaped review. The law was modified so that if it were built today, it would require environmental review.   But a larger facility built with private money on agriculturally-zoned land such as Hu Honua still does not trigger environmental review.

The PUC application and permission to process governing the Hu Honua biomass (burn trees for electricity) is an example of what’s wrong with the state’s current processes governing the permitting process of power generation facilities and fulfilling Hawaii’s goal to a clean energy economy by 2045.  Reforming the current permit review process can take several forms, but future reforms must fully consider the need for an environmental review.  This reform of the current review process would include environmental, climate, and social consequences, and would have one of several triggers: all large power plants, all power plants with injection wells, all power plants that have large greenhouse gas emissions, all power plants that burn trees, all coastal infrastructure facilities, etc.

Contrary to some people`s public belief, we do not have uniform federal laws. Federal appeal courts can interpret federal law in different ways, and until the Supreme Court speaks, the states within each federal appeals court jurisdiction have to follow the relevant interpretation.

The Clean Water Act requires permits for discharging pollution, including heat, into the ocean. Some appeals courts assert that the pipe must go into the ocean in order to trigger regulations. The Ninth Circuit Court of Appeals asserts that if a conduit between the pipe and the ocean exists, that is sufficient.  This legal interpretation of the Clean Water Act could have local implications, as exemplified by Hu Honua plant operations which has already discharged contaminated water into the area reef system and ocean, as acknowledge by DoH.

Maui County is challenging that interpretation. Having lost in federal court and the appeals court, the county has asked the U.S. Supreme Court to hear the case. The county has spent nearly twice as much money on the appeal than it needed to come into compliance.

State law could be passed that imposing state regulations of all ocean conduits.

The definition of renewable energy used by the Public Utilities Commission has drastically changed several times since the Legislature first defined it in 2001.

The Legislature could assert that biomass generators which burn trash, trees and other combustible materials for power do not qualify as legitimate energy sources for power generation due to their smokestack emissions contributing to global warming and as a source of local area air pollution.  A reform bill addressing this loophole in the current RPS 2045 law was introduced in House in 2016, but failed to clear its committee for consideration by the legislature.  Any reform legislation would have to pass the State Legislature.

In general, in broad stereotypical terms, multi-issue groups know that any given legislator will support some of their bills, oppose others, and be indifferent to still others. The art of persuasion occurs.

In general, in broad terms, some stereotypical single-issue groups get frustrated, especially when legislators prefer to sort things out behind closed doors. This can lead to an advocacy group taking a no-prisoners approach, which universally fails. Some single-issue groups making it personal and aggressively attack people, stressing a vinegar instead of honey approach, which often backfires in big ways, and poisons the well for years to come.

The State Legislature`s 2019 session opens on January 16th. The seven chairs of energy, environment, and transportation are:

  • Nicole Lowen, House Committee on Energy & Environmental Protection       
  • Mike Gabbard, Senate Committee on Agriculture and Environment
  • Glenn Wakai, Senate Committee on Energy, Economic Development, and Tourism
  • Roy Takumi, House Committee on Consumer Protection & Commerce
  • Rosalyn Baker, Senate Committee on Commerce, Consumer Protection, and Health
  • Henry Aquino, House Committee on Transportation
  • Lorraine Inouye,  Senate Committee on Transportation

Two Big island and knowledgeable state legislators on energy policy are Senator Lorraine Inouye and Representative Nicole Lowen.

Senator Inouye is Senate Majority Whip and Chair of the Senate Committee on Transportation. She sits on the Hawai`i Climate Change Mitigation and Adaptation Commission, is a champion for energy storage tax credits, was chair of the Senate Energy Committee, and completed the University of Idaho`s Legislative Energy Horizon Institute’s (LEHI) course in energy policy, a 60-hour energy immersion executive course with the University of Idaho.

Representative Nicole Lowen is House Majority Whip and Chair of the House Committee on Energy & Environmental Protection. Lowen served as a Legislative Liaison for the University of Hawaii Environmental Center, as a Policy Researcher, for the University of Hawaii Department of Urban and Regional Planning, and as an Executive Committee Member of the Sierra Club Hawaii Chapter.

Now is the time to determine which approach to take. One can either write a detailed bill or submit an outline to a Legislator. In either case, the proposed language will be reviewed by legislative analysts to put in into the correct legal structure.

Seeking to persuade Legislators is far more likely to succeed than attacking them.


Broken Pv

PUC 2018 Submission — Proposed Customer Self-Supply Rules

The comments that follow are my April 10th 2018 submission to the HPUC, ref: docket 2014-0192.  My submission addressed the HPUC request for public comments whereby Hawaii’s PUC is presently considering a so-called “Customer Self Supply” or CSS ruling that will govern the state’s installed base of residential solar power producers fortunate enough to have previously qualified for (NEM) net metering program, and solar residents and businesses now seeking to add battery storage options, and potentially greater solar capacity (as technology improves and costs drop), but are presently prohibited from making any system improvements or modifications to their installed solar system – solar investments with a lifestyle of 25 – 30 years… 

Background – As a full time resident of Hawai’i, an emissions-free power producer, NEM customer of HELCO, EV owner, participant in the state’s 2045 RPS goal, and with 20 years’ experience in the clean energy market sector, I’m well qualified to speak from experience about the role and opportunity of distributed solar power generation and storage presents to Hawai’i.

Over 15% of residential customers in some areas of Hawaii have rooftop solar. As a result, Hawaii is the first “test case” in the U.S. for high penetration solar.  The large scale adoption of distributed solar and storage across Hawaii’s multi-island network of power grids is a cost effective and energy efficient alternative to the 20th century utility business model and strategy employed by Hawaiian Electric companies.

Faced with declining power sales profits, Hawaiian Electric, through its multi-island utility power monopoly, clamped down on residential solar installations by capping roof-top solar growth in a multi-prong strategy of successfully lobbying the HPUC to end the state’s highly successful net metering program, raising solar-specific rates, and in some cases simply prohibiting residential and business solar installations in Oahu, Maui, and Hawai’i Island.

Instead of Hawaiian Electric upgrading its local grid assets to address the opportunities available to 21st century grid operators employing distributed two-way power flows efficiently, the state’s largest utility instead has systematically deployed a strategy to limit distributed solar growth in Hawai’i, a strategy based on the false premise that power producing utility customers are in fact competitors.  The effect of this HECO strategy, along with the termination of Hawaii’s successful and fair cost sharing NEM program in 2015, has had a major economic impact on the growth of Hawaii’s clean energy solar economy, resulting in less grid reliability – not more, higher rates to consumers, and a grid-based power supply on three of Hawaii’s four major islands that is ill-prepared for the new climate change realities now unfolding across the world.

Customer Self-Supply (CSS) – On March 9, 2018, the Hawaiian Electric utility companies filed their proposed policy and procedure referencing the Commission’s decision and order 34924, issued on October 20, 2017, Docket No. 2014-0192 that allows for NEM customers to add (upgrade) their PV systems with system technology upgrades confined to non-export power applications, e.g., the addition of battery storage to existing NEM customer installations.

HECO acknowledges in their letter to the Commission provisions in which NEM customers may choose to add to their PV system non-export technology components so long as these component “upgrades” include the addition of advanced inverter technology which benefits the utility – an added component cost which is entirely assumed by residential solar energy producers, not Hawaiian Electric.

The CSS guidelines further require NEM Customers to submit to their governing HECO utility for review and approval a request to add non-export technology to their existing NEM system, even though such technical modifications do not impact or otherwise permit additional power supply directed to the grid beyond the original allowable capacity limit and NEM agreement between the Customer and HECO establishing customer power generation limits back to the grid — in effect, the CSS NEM customer system modifications are limited to power generation-storage purposes other than supplying power to the utility grid.

Operationally, NEM customers that add battery storage or added PV production capacity, as the rules are written, are restricted to a non-export customer site battery charging application, with no operational effect or impact on HECO power management and load balancing requirements of the utility’s grid.

The Commission should ask itself, under current CSS rules why HECO has the right to dictate and place requirements and costs on NEM customers that pertains to private property and self-supply power assets owned and operated for personal use that is technically firewalled from the utility grid operation.

An argument can be made that CSS is analogous to off-grid residential property owners who generate, store, consume and manage their own power management assets for their own purposes in which no such requirements apply.   This is a legal question concerning the CSS rules which have yet to be tested.

Recent events in Hawai’i and around the world have placed power security at the forefront of power consumer concerns. Traditional grid operators, like HECO utilities, are cases in point.  HECO has failed to learn from recent extreme weather events around the world, and more specifically, Puerto Rico, that 20th century design centralized power grid operations fail the resiliency test and demands of 21st century climate change.

The reliability of electricity supply systems is generally measured using two metrics that show the duration and frequency of outages. The US Energy Information Administration reported interruptions in electricity service vary by frequency and duration across the many electric distribution systems that serve about 145 million customers on the United States mainland.  In 2016, customers experienced an average of 1.3 interruptions and went without power for four hours or more during the year.  Outage frequency and duration values are reported to EIA for any interruption lasting longer than five minutes. Utilities may designate if these outages occurred during major events, which in the case of Hawai’i can include hurricanes, floods, wind storms, or heatwaves.

Here on Hawai’i Island HELCO has demonstrated itself to be an unreliable power provider partner. Shortly after completing a year-long effort (at ratepayers expense) to harden its operating grid from Waimea to Kona, Hawai’i Island was hit with a wind storm (not even a Cat 1 force storm) on October 24, 2017 that resulted in power disruptions in North Kona of more than 5 hours, and in four other locations around the island, including parts of Hilo.  HELCO’s 2017 power reliability record for Hawai’i Island included extended power disruption events (planned and unplanned) followed by local headlines that read:

10-24-17          Storm knocks out power to 4,600 HELCO customers on Hawaii Island

10-5-17           Over 2,000 HELCO customers lose power in North Kohala

09-21-17          HELCO scheduled 10 hour power outage in North Kohala

07-28-17          HELCO power outage due to Keahole power plant tripping offline

Can Hawai’i Island residents and businesses trust their utility to be there when needed in the time of an emergency?  If recent events in Puerto Rico and other island communities are any guide, Hawai’i power consumers face even greater uncertainty in the utility’s readiness based on a fragile centralized power delivery structure that fails to address the challenges of future climate change-driven super storms.

Utility customers today, and without any special utility permitting process, may install on their property a gas-powered stand-by generator to serve as a power security backup in the event of a utility power service failure. Home generators, however, have a limited operating duration: for the average home and fuel supply, and other limitation factors, a continuous emergency energy supply from gas-power back-up system are is generally limited to 8-to-12 hours operating duration. PV and battery storage systems in many cases can provide non-stop, whole house auxiliary power for up to one week, possibly longer, preventing economic and social disruptions for Hawai’i residents and businesses as the centralized grid recovers and restores customer power.

If power security is important to the residents and businesses of Hawai’i, and who would argue otherwise, then the installation of roof top solar coupled to batteries, connected or not connected to the grid are the primary missing links in Hawaii’s journey to achieve a 100% reliable and renewable clean energy economy that is diversified, distributed, robust, resilient, cost and technology effective.  The CSS rules fall short in achieving this essential transition.

In summary — from direct experience over the past 6 months in qualifying and performing technical and regulatory due diligence with solar / battery contractors in an attempt to upgrade and add on-site battery storage and production capacity to our legacy NEM PV system installation, I have discovered firsthand how the CSS requirements can place an unreasonable burden of time and money investment on NEM solar customers seeking power security and greater self-generation power efficiencies, while furthering Hawaii’s clean energy economy and independence from fossil fuel.

What HECO and the PUC so far have failed to address is the opportunity for a changing utility business model that embraces grid service ahead of power generation revenues, and the important role the grid can play in power back-up and power management among all of Hawaii’s power stakeholders.

CSS as currently developed adds unnecessary barriers of entry for existing NEM customers: layers of bureaucracy and unnecessary costs to roof top solar participants in Hawaii’s clean energy economy. Instead of rearranging the chairs on the Titanic, the Commission should look to California and other advanced and progressively regulated clean energy markets for lessons already learned and the merits in advancing distributed power opportunities for the public benefit.

Bill Bugbee


Principal, Globetrans-ec

Kailua-Kona, HI  96740

Trash Deposal

Recycle, compose, or incinerate: Hawaii’s trash future

Hawaii County’s (Big Island) efforts to address a growing problem of what to do with its municipal solid waste started off with grand goals and public pronouncements of “recycle and reuse”, but the “Maximize Waste Reduction, Sustainability, also included Energy Production as a caveat ” With energy introduced as element of the RFP, all other sustainable waste management goals were quickly pushed aside in which all roads led to incineration. Read more