State Supreme Court justices posed a series of tough and skeptical questions to attorneys representing Hu Honua and Hawaii Electric Light Company on Tuesday.

The questions, focused on potentially high costs to consumers and greenhouse gas emissions, came during oral arguments in Hu Honua’s appeal of the Hawaii Public Utilities Commission’s rejection of a 30-year power purchase agreement. That deal would have allowed the proposed biomass plant on Hawaii island to fire up.

The fight to open the nearly built power plant, located some 10 miles north of Hilo, has dragged on for years and has been appealed to the state Supreme Court twice before.

Hu Honua’s attorneys alluded to the long battle in their Dec. 28 reply brief to the court, calling it “déjà vu all over again.” The company says its third appeal to the high court raises the same questions: did the PUC comply with the law, or did it exceed its authority?

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

He said the PUC incorrectly revisited the tree-burning project’s overall costs and pricing structure when it should have stuck to the issue of greenhouse gas emissions. In other words, even though Hu Honua would raise the average consumer’s bill by an estimated $10 a month if it went into operation, the PUC should not have considered that because that was not an issue raised in the 2018 appeal.

Voss’ reasoning prompted Chief Justice Mark Recktenwald to ask whether the attorney thinks consumer electric bills are a matter of public interest and, if so, doesn’t the commission have a responsibility to take that into consideration.

Voss said no because the specific statute the court used in remanding the case back to the PUC did not concern electricity prices but rather addresses the need to reduce the state’s reliance on fossil fuels, which Hu Honua arguably would do.  

Seeking clarification, Justice Todd Eddins took another stab at asking Voss about the price issue and the PUC’s role in considering it.

“Aren’t they at liberty or even required to consider pricing and the reasonableness of that pricing in light of the (greenhouse gas emissions)?” Eddins asked.

“I don’t believe so,” Voss said.

The bulk of subsequent questions pivoted to greenhouse gas emissions the plant would release into the atmosphere through its burning of eucalyptus trees.

Justice Michael Wilson repeatedly brought up the fact that the Hawaii Legislature became the first in the nation to declare a climate emergency in 2021 and passed a law requiring the state to be carbon neutral by 2045.

Considering the degree of the emergency and the fact that urgent action is needed to protect the environment, wouldn’t the precautionary principle require the PUC to take greenhouse gas emissions into account “as the emergency gets more and more severe?” Wilson asked.

Voss said it’s a balancing act and the PUC in essence put its finger on one side of the scale and said to Hu Honua, “you lose.”

A major reason the PUC cited in rejecting Hu Honua’s application for a power purchase agreement was that its plans to sequester carbon and make the plant carbon neutral were speculative and not credible.

Justice Sabrina McKenna asked Voss about a statement he made concerning the $519 million investment Hu Honua’s financial backers have made in the project to date.

She questioned whether his reference to that investment was suggesting Hu Honua has “some sort of vested right” to get a power purchase agreement from the PUC.

“Hu Honua does have a vested right but that’s another argument for another day,” Voss said.

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

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