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A social investment firm has joined Hawaii Gas in calling on the state Public Utilities Commission to force NextEra Energy and Hawaiian Electric to turn over internal emails about using liquefied natural gas to help power the islands.
Ulupono Initiative filed a motion this week in support of Hawaii Gas’ request that the PUC compel the information, an action NextEra and Hawaiian Electric have opposed.
“We believe that the more NextEra is willing to be transparent about its plans and intentions, even if not fully formed, the more we can trust them, and the more we can have a relationship based on mutual respect,” Kyle Datta, a general partner at Ulupono, told Civil Beat on Wednesday.
The PUC is eight months into the biggest utility merger case in Hawaii history. A decision on the proposed $4.3 billion sale of Hawaiian Electric Industries to Florida-based NextEra Energy is not expected until June but the back-and-forth between the companies and some of the 28 PUC-appointed intervenors has been heating up.
In July, Gov. David Ige’s administration came out against the planned merger as it currently stands.
He questioned the companies’ support of the state’s goal of becoming 100 percent renewable by 2045 and said the information submitted so far lacks sufficient responses to show why the sale would benefit Hawaii’s electric customers.
NextEra has repeatedly tried to assure public officials and others that the deal is good for Hawaii. Last month, NextEra spokesman Rob Gould said the company’s filings with the PUC demonstrate more than $600 million in economic benefits in the first five years after closing.
NextEra declined to comment Wednesday on Ulupono joining the Hawaii Gas motion to compel.
Hawaii Gas says it wants to determine if NextEra’s statement that it has no LNG plans other than supporting HECO’s current power supply improvement plan is accurate.
The company says the emails could show whether NextEra and HEI are planning to procure LNG in a manner that favors NextEra affiliates and diminishes competition contrary to the public interest; whether the companies intend to take the same approach to procuring future renewable energy resources; and whether their desire to control LNG procurement may be used to extend the life of HECO’s existing power plants to the detriment of more efficient and renewable power generation.
Nathan Nelson, Hawaii Gas vice president and general counsel, told Civil Beat that the company was glad to see Ulupono join in support.
“Many of the parties in the docket are experiencing the same type of stonewalling,” he said.
NextEra and Hawaiian Electric Industries’ three subsidiaries that provide power to Oahu, Maui and Big Island filed a joint memo Aug. 10 in opposition to the request, saying the documents Hawaii Gas wants “are of a competitive nature, and could create undue delay in this proceeding.”
Hawaiian Electric and NextEra say Hawaii Gas is a business competitor seeking to unfairly and improperly use the regulatory process to gain access to sensitive business documents and information for its competitive advantage.
They view the attempts to compel disclosure as overly broad for determining if the merger is in the public interest.
“The issue is not a question of whether LNG issues could somehow be considered to fall within the overall subject matter of the current proceeding,” attorneys for the companies told the PUC. “Instead, the question is whether getting into granular detail in a particular field is proper in a broad-reaching proceeding such as this. Plainly it is not.”
Hawaii Gas attorney William Meheula said that HEI and NextEra have only produced a fraction of the requested emails, redacting them in the process, and have withheld others.
“Importantly, the withheld LNG Emails, especially the emails between the HECO Companies and NextEra executives, may reveal the extent to which the proposed merger is likely to confer upon NextEra affiliates/subsidiaries an unfair competitive advantage with respect to LNG procurement and other affiliate transactions,” Meheula told the PUC in the motion to compel.
Ulupono attorneys Michael Marsh and Jason Kuzma said in their motion this week that the Hawaii Gas request for the emails is not beyond the scope of the merger decision-making process. They noted that HECO President Alan Oshima told the PUC in his testimony that NextEra’s extensive natural gas experience should help Hawaiian Electric execute plans to bring LNG to Hawaii.
NextEra and Hawaiian Electric said they would provide some additional emails, including correspondence regarding the delivery of LNG in bulk to a land-based terminal or floating storage and regasification unit as well as discussions about the volume of LNG that may be required by Hawaiian Electric.
They also agreed to provide additional emails on a restricted basis that contain sensitive or proprietary commercial information, bid information and vendor information.
But the companies said they would not turn over any emails protected by attorney-client privilege or that are subject to a third-party nondisclosure agreement.
“A lot of information has been provided to all parties,” said Darren Pai, HECO spokesman. “The information Hawaii Gas is seeking has already been provided to the PUC and the Consumer Advocate. It was not provided to Hawaii Gas because it’s competitive business information.”
Hawaii Gas is not seeking any third-party emails about LNG, Nelson said.
Datta said Ulupono decided to join Hawaii Gas in its motion to compel the information because one of its corporate values is transparency.
Datta said NextEra and Hawaiian Electric don’t necessarily have to make the emails public, or even share them with Hawaii Gas, so long as they give them to the Hawaii Consumer Advocate and the PUC to use in the decision-making process.
The PUC will decide whether to grant the Hawaii Gas request for a hearing. The PUC could also rule on the motion to compel without a hearing.
On Sept. 4, the PUC plans to hold its first of seven “public listening sessions” on the proposed merger at Lihikai Elementary cafeteria on Maui. The series wraps up with a meeting Oct. 27 on Oahu, tentatively set to be held at McKinley High School.
The next step will be a series of evidentiary hearings that are scheduled to run through December.
The Ulupono Initiative was founded by Pierre and Pam Omidyar. Pierre Omidyar is the CEO and publisher of Civil Beat.