Hawai‘i High Court Rules in Maui Case Involving Due Process at the PUC

December 15, 2017, 1:12 PM HST · Updated December 15, 1:12 PM
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The Hawai‘i Supreme Court ruled on Thursday in favor of an appeal brought by Earthjustice on behalf of the Sierra Club.  The appeal challenged the Public Utilities Commission and its denial of a request to intervene in a case involving a proposed agreement by Maui Electric Company to buy power from the former Hawaiian Commercial & Sugar plantation’s coal-fired power plant.

HC&S sugar cane fields had covered the Central Maui plain. The company stopped farming sugar at the end of 2016, and is instead pursuing a diversified agricultural model for the 36,000 acres presently in cultivation. According to Earthjustice, the HC&S plant was burning up to 25% coal over the course of a year to meet its power production obligations to MECO. File Photo by Wendy Osher.

The Hawai‘i Supreme Court held that Sierra Club had a due process right to be heard to protect its environmental interests under Article XI, section 9 of the Hawai‘i Constitution, which declares that “[e]ach person has the right to a clean and healthful environment.”

According to Earthjustice, the Court further held that state law required the Commission to consider the “hidden and long-term costs of energy produced at the [HC&S] Plant, including the potential for increased air pollution as a result of greenhouse gas emissions” in determining whether the agreement was prudent and in the public interest.

Shayna Decker, Director of Communications at Maui Electric responded to Maui Now’s inquiry about the ruling saying, “Maui Electric agrees that it is important to consider the environmental impacts of a project on the community. As such, the company has made it a priority to communicate early and often with customers and stakeholders in communities where projects are planned.”

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Decker said the decision pertains to a “procedural issue,” and said, “the company does agree with the dissenting justices who observed that the majority opinion ‘expands the limits of due process in ways that could have unintended consequences.’  Maui Electric is currently evaluating the potential impact of the decision on future projects.”

According to Earthjustice, the ruling “resolves long-running inconsistencies” among Commission decisions on environmental groups’ requests to take part in Commission proceedings.  The law firm noted that public interest is increasing in frequency and complexity “in light of Hawai‘i’s statutory mandate to achieve an energy grid powered by 100% renewable energy by 2045.”

“It is vital that citizens have a seat at the table as Hawai‘i advances toward 100% clean energy,” said Earthjustice attorney Kylie Wager Cruz. “The Court provided much-needed confirmation that the Commission can’t simply rubberstamp utility deals without considering and protecting the public’s constitutionally protected environmental rights.”

“The Commission can no longer ignore us. We will continue to oppose dirty fossil fuels and push for a just transition to clean, renewable energy in our state,” said Sierra Club of Hawai‘i Director Marti Townsend.

According to Earthjustice, the HC&S plant was burning up to 25% coal over the course of a year to meet its power production obligations to MECO.  Earthjustice notes that in 2014, the state Department of Health assessed a $1.3 million fine against HC&S for hundreds of clean air violations at the plant. HC&S closed in January 2017 as the parent company makes a shift toward diversified agriculture.

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