Environmental attorneys say that Hawaii’s Public Utilities Commission likely erred in approving a wind farm before its environmental review was completed.
Last week, the PUC approved a contract between Hawaiian Electric Co. and Champlin/GEI Wind Holdings, based in Santa Barbara, Calif., for a new 10-turbine wind farm to be built in Kahuku on Oahu’s North Shore.
However, the state environmental impact statement for the Na Pua Makani wind farm — an extensive document that discloses the project’s potential impacts on the community, cultural sites and natural resources — isn’t expected to be completed until the second or third quarter of this year.
HECO urged commissioners not to wait for the environmental review to be completed before ruling on the project because the wind farm developer might lose out on a lucrative federal tax incentive that expired at the end of 2014. The utility also argued that a regulatory delay could have a chilling effect upon renewable energy development across the state.
On Dec. 31, commissioners approved the project, arguing that nothing in the state’s environmental review law, known as Chapter 343, required that they wait for the EIS.
But local attorneys with expertise in environmental law say that the PUC should have waited.
“If they make a decision first and do the environmental review later, that is illegal,” said David Henkin, an attorney at Honolulu-based Earthjustice, an environmental law firm. “It completely undermines the purpose of having environmental review.”
Hawaii is one of a handful of states with its own environmental review process, which is modeled after the National Environmental Policy Act of 1970. Four decades ago, the Hawaii Legislature established its own laws to “ensure that environmental concerns are given appropriate consideration in decision-making along with economic and technical considerations.”
In 2013, Hawaii’s Department of Land and Natural Resources determined that the proposed Na Pua Makani wind farm, which would be built in part on state land, required an EIS. The DLNR is responsible for approving the EIS and is expected to rule on permits for the project.
In approving the wind farm, the PUC seemed to decide that only the DLNR needed to wait on the environmental review to be completed before it issued project approvals.
But Henkin said that all state agencies that have discretion over projects must wait for the environmental review to be finished.
“I would be very surprised if the PUC was not subject to the same rules as every other state agency,” he said.
Denise Antolini, a professor specializing in environmental law at the University of Hawaii’s William S. Richardson School of Law, agreed that the PUC’s decision not to wait on the EIS didn’t seem “in sync” with the law.
“It raises serious questions about interagency cooperation to comply with the spirit and letter of Chapter 343,” she said.
The PUC approval raises questions about what exactly the role of the commission is in approving the increasing number of renewable energy projects being proposed throughout the state, which often spark debate over aesthetic, cultural and environmental impacts.
Opponents of the Na Pua Makani wind farm, including the Kahuku Community Association and the Koolauloa Neighborhood Board, have worried about the visual impact of another wind farm on the small old plantation town. The North Shore already has two wind farms, one in Kahuku.
HECO, in filings before the PUC, argued that it is not the commission’s role to take into account a project’s environmental impacts — rather, the PUC’s role is strictly economic regulation. That role is to approve the rate at which HECO will be purchasing the wind farm’s power, not the project itself, HECO argued.
The PUC’s ruling was silent on this issue and PUC Chief Counsel Tom Gorak didn’t respond to Civil Beat’s questions asking him to clarify the commission’s position on its role.
Henry Curtis, executive director of Life of the Land, an environmental and community action group, said that the PUC regularly takes into account issues that are much broader than consumer rates when it comes to energy projects.
Curtis noted that the PUC opened up a separate docket to investigate issues related to a proposed Big Island biofuel project that went beyond whether the selling price of the fuel was in the best interest of consumers. Life of the Land was allowed to intervene in the proceedings and raised concerns that Aina Koa Pono’s plant would harm the rural character of the community, that it’s trucks would impact narrow roads and the technology hadn’t been proven safe.
(The PUC ultimately rejected the project.)
Henkin said that the PUC had opened itself up to potential litigation in prematurely ruling on the Na Pua Makani wind farm.
“If anyone is upset about what the PUC did then they would have to take it to court and relatively quickly,” he said.