Nearly two months ago, new rules that would curb the state’s greenhouse gas emissions landed on Gov. Neil Abercrombie‘s desk for his signature.

The rules are still waiting on the Democratic governor.

And so are environmentalists, who worry that Abercrombie’s slowness to pick up his pen might be the result of pressure from influential companies that would be affected by the legislation. They’re also concerned about two bills introduced last month by state lawmakers that could, they argue, help gut Hawaii’s greenhouse gas law.

“Obviously what is going on here is that some people are unhappy with the way the rules were written, or rather they are unhappy with the greenhouse gas rules, period,” said Jeff Mikulina, executive director of Blue Planet Foundation, a clean energy advocacy organization in Honolulu.

“I think what we are seeing is an attempt to undermine our historic greenhouse gas law or make it toothless.”

The air pollution control rules that await the governor’s signature would give teeth to Hawaii’s 2007 law on greenhouse gases, known as Act 234, which requires the state to reduce emissions in the air to 1990 levels by the end of this decade. The rules provide a road map for reducing emissions at facilities throughout the state and specify that power plants and refineries must reduce greenhouse gas emissions by 16 percent or face specific penalties if they don’t comply.

The state’s law on greenhouse gases was signed by former Gov. Linda Lingle, a Republican, with much fanfare. Hawaii became the second state to pass such a law, following the lead of California.

Reducing air pollution, the law states, “will continue the state’s tradition of environmental leadership by placing Hawaii among the nation’s leaders in efforts to effect a climate change policy.”

But getting the 7-year-old program to enactment has been a frustrating stop-and-go experience for environmentalists. The state was supposed to have had the rules in place two years ago.

Robert Harris, an attorney who is director of the Hawaii Sierra Club, warned that further delays could prompt a lawsuit against the state for not complying with the law, but he declined to comment on whether the Sierra Club is considering taking action in court.

Why the Wait?

Justin Fujioka, a spokesman for the governor, says that it’s taking time to sift through the “voluminous” stack of rules that “address complex regulatory issues.”

The 242-page rule package, produced by the state Department of Health, lays out in technical detail the steps that owners of fossil fuel-burning power plants and refineries must take to reduce greenhouse gas emissions.

About two dozen facilities in the state would be affected, including the oil refineries, the electric utilities, Hawaiian Commercial & Sugar Co. on Maui and AES Hawaii, the state’s sole coal plant.

The governor, Fujioka said by email, “is currently exploring how the proposed rules will affect specific agencies and industries, including refineries, along with his energy policy agenda.”

Fujioka declined to elaborate on how these new emission controls could affect the governor’s energy agenda and said it was unknown how long the governor’s review could take.

But Fujioka stressed that Abercrombie is “acutely aware” of the effects of greenhouse gases on climate change. The governor was recently appointed to President Barack Obama’s Task Force on Climate Preparedness and Resilience.

That said, Abercrombie, who is engaged in a re-election campaign, can delay signing the rules indefinitely, said Mikulina.

Oil Refineries Pressure State Officials

Officials of 
Hawaii’s two refineries have expressed concern about the cost of implementing the mandated emission controls. The financial well-being of those refineries has been the subject of intense public policy concern since Tesoro, an energy company, announced that it was leaving the Hawaii market a year ago.

At the last minute, Tesoro managed to secure a buyer for its facility. But the prospect of losing one or both of Hawaii’s refineries has troubled Abercrombie, lawmakers and state energy officials.

Oil experts note that the absence of refineries would leave Hawaii even more vulnerable to price fluctuations in the international oil market than it already is.

Chevron spokesman Al Chee said that he didn’t want to go too far into Chevron’s concerns about the rules while the governor is reviewing them and while bills are moving through the Legislature that could affect the greenhouse gases law.

The pair of bills, introduced by Rep. Mark Hashem and Sen. Kalani English would ostensibly provide the health director “with greater flexibility in creating rules to reduce greenhouse gas emissions in the state.”

To elaborate on Chevron’s past concerns, Chee directed Civil Beat to a 2008 report commissioned by Hawaii’s Public Utilities Commission that assesses the finances of the local oil industry. It analyses the potential collective consequences of the law on greenhouse gases and the Hawaii Clean Energy Initiative on the state’s refineries. (The energy initiative mandates that 40 percent of oil-fired electricity generation be replaced by clean energy by 2030.)

“The current profits of these refineries are poor,” the document says, “and in light of the regulatory issues noted, the question of whether or not one or both refineries will close may be a question of when, not if.”

Possible risks were also noted in a November 2013 report commissioned by Abercrombie to investigate the potential effects of losing the refineries. The Hawaii Refinery Task Force report warned that implementing Act 234 would require the refineries to scale back their oil refinement to achieve lower emission levels, which would also hurt companies’ profits.

The report concluded that one or both refineries were at serious risk of closing by 2020 because of financial pressures related not only to Act 234, but the Hawaii Clean Energy Initiative and additional federal regulations.

Mikulina said that he was sympathetic to the financial pressures, but stressed that the emission rules are flexible, allowing facilities numerous escape routes to reducing emissions. For instance, a refinery could buy “carbon credits” from the owner of a power plant that has reduced emissions or invest in other technologies, such as electric cars, that will aid the state’s goal of reducing greenhouse gases.

Spokesmen for both Chevron and Hawaii Independent Energy, formerly Tesoro, said that they had expressed their concerns about the rules on greenhouse gases to the state energy office.

Chee said that he has had several conversations with state energy administrator Mark Glick and his staff “specifically about the greenhouse gas rules and the potential impacts on this facility.”

“So that is our portal to the (Abercrombie) administration,” said Chee.

Chee said that it was his understanding that the energy office shares Chevron’s concerns about the rules.

Glick declined a request for an interview for this article.

Noreen Kam, a spokeswoman for the energy office, said that conversations with Chevron “were conducted in the context of the Hawaii Refinery Task Force.”

Devil in the Details?

Mikulina and Harris argue that the bills moving through the Legislature essentially defang Hawaii’s law on greenhouse gases. For one, the state health director would no longer be required to create rules to enforce the law — the word “shall” create rules has been replaced with “may” create rules.

Harris said that the bills would transform the state’s legal requirement to implement emission rules for greenhouse gases into a “completely discretionary” decision.

He expressed doubt that the bills will pass.

Mikulina hopes the legislation will fail.

“It’s our hope that they don’t get any traction,” said Mikulina. “I think it would be untenable for (lawmakers) to gut our greenhouse gas law when climate change seems to be one of the predominant themes at the Legislature this year.”

Neither English or Hashem responded to interview requests, although Hashem released a statement to Civil Beat saying that Hawaii’s Clean Energy Initiative is expected to help the state exceed the state’s greenhouse gas emissions targets.

Hashem also raised concerns about the cost issues involved in requiring individual facilities to reduce emissions, as opposed to seeking an overall reduction within the state.

About the Author