After 14 days of regulatory hearings to help decide whether or not the $4.3 billion NextEra Energy-Hawaiian Electric Industries deal goes through, the question of control is emerging as a key issue.

As in: Would the Public Utilities Commission retain all of the regulatory authority it has over Hawaiian Electric?

Attorney Isaac Moriwake, an Earthjustice attorney representing the Sierra Club, spoke on the sidelines of the hearing of a fundamental concern: What ability would the PUC have “to investigate, review and ultimately regulate this humungous company of which HECO is only one piece?”

A NextEra-owned public utility in the islands, Moriwake said, would raise questions about, “How much access is NextEra going to grant the PUC to monitor the various companies’ operations, to inspect their books, or to bring the NextEra parent to Hawaii to answer questions?”

After all, he added, NextEra is “a sprawling company of which HECO (would be) only the tip of the iceberg.”

Nextera Energy Hawaii President Eric Gleason spent three days on the stand at the hearing that will decide whether his company's purchase of Hawaiian Electric Industries goes through.
NextEra Energy Hawaii President Eric Gleason returned to the stand at the hearing that will decide whether his company’s purchase of Hawaiian Electric Industries goes through. Cory Lum/Civil Beat

Hawaii State Energy Office Administrator Mark Glick said, “Accountability and having measures and commitments that are enforceable, and that have clear metrics, are at the heart of many of the questions.”

Questions relating to control came and went throughout a day when NextEra Energy Hawaii President Eric Gleason was called back to testify in a follow-up to his three-day stint before the commission in December.

Gleason answered numerous questions revolving around whether the PUC would retain its influence after a sale: what state the new company would be domiciled in (uncertain); can some of the new company’s board members come from the ranks of HECO employees (yes); how much operational power will the company’s local advisory board have (none); and will Hawaii’s PUC be able to regulate the NextEra subsidiary that would oversee the utility in the islands (uncertain).

Gleason has repeatedly said that NextEra would be cooperative with the commission.

The search for clarity about regulatory control came a day after testimony — and the sharing of once-confidential documents — that showed how Hawaiian Electric Chief Financial Officer Jim Ajello was chafing, a year and a half ago, at pressure from the state’s energy regulators.

In an email to HEI President and CEO Connie Lau, the notably blunt Ajello questioned whether — given the company’s reputation, “frailties” and “transformational leadership challenge” — Hawaiian Electric was capable of continued success.

“I don’t buy the notion that our reputation would be hurt if we failed more than where we sit today — how can it be worse.” — Hawaiian Electric Chief Financial Officer Jim Ajello

The status quo added up to “more risk than any other option, in my view,” Ajello wrote in the July 19, 2014 email.

He lamented that Hawaiian Electric was ordered to come up with a forward-looking plan by the PUC — which repeatedly demanded changes — when the power company should have been able to design its own. “I really object, he wrote, “to being forced into strategy by folks who really don’t operate a business.”

The utility’s long-term plan amounted to a “capitulation to what we think the PUC wants us to do. Sure, we are doing the strategy, but make no mistake, we are being forced to offer this, and once we do, we will find we will get wacked,” he wrote.

“Truth be told, we are on our corporate knees, begging not to be hurt,” he wrote.

By contrast, he gushed about NextEra’s track record — “without question, the most accomplished renewable developer in the world” — and its “enormous financial strength,” adding that the Florida-based company “can absorb all the financial push-back better than us.”

“I think the stakeholder (all our constituencies and the state overall) is better served by a new approach and new ownership,” he wrote. The potential buyer, he added, “is willing to present value now, absorb a huge amount of risk including all the tax, premium, regulatory and other risks.”

Selling the company to NextEra, which formally approached the company 40 days before he wrote that email, was the smart thing to do, Ajello concluded.

Even if a sale to NextEra failed, he specified, Hawaiian Electric could go back to trying the “strategy” of working with the PUC. “I don’t buy the notion that our reputation would be hurt if we failed more than where we sit today — how can it be worse.”

HEI Chief Financial Officer James Ajello addressed questions about his email to the head of his company before the Public Utilities Commission at Neal S. Blaisdell Center on Monday.
HEI Chief Financial Officer Jim Ajello addressed questions about his email to the head of his company before the Public Utilities Commission at Neal S. Blaisdell Center on Monday. Cory Lum/Civil Beat

While he said that NextEra should improve the offer, the prospect of a sale beat what was possible for “an extremely weak team working in a hostile environment.”

Ajello also wrote that he could think of no better way to “control our long-term destiny with our present set of cards that bests the (NextEra) approach.”

Four months later, the two companies announced they had come to a deal.

Ajello explained in his testimony on Monday that the “extremely weak team comment” was in relation to the company’s position in the face of numerous PUC demands to transform the way it did business.

On Tuesday, Earthjustice’s Moriwake expressed concern about Ajello’s views toward regulators who are trying to assess whether they might be able to guide a NextEra-owned utility to satisfy Hawaii’s electricity needs.

“So I think a proper response that is aligned with the commission’s direction would be: Okay, we see where the Public Utilities Commission wants to go, we embrace that vision and, you know, we think NextEra can come in and take us to that next level,” the attorney said.

“That Ajello email screams the opposite: We have our traditional business model, we recognize that the PUC wants us to do something different. … But frankly, me, Ajello, I think it would be better for us if we bail and let NextEra come over.”

Glick said that the issue of regulatory control is part of a broader debate. The main questions for the PUC, as it assesses the merger, are whether it sees the deal as in the public interest, and also whether NextEra is “fit, willing and able to perform these duties,” he said.

“It is only relevant if you need to delve into those issues to see if the merged company provides incremental value over the existing company, as well as whether there are deficiencies,” Glick said.

A company with a board of directors and other structures outside of the islands, he said, raises questions: “Does that put the state at a deficit compared with where we were under the status quo; the existing scenario of Hawaiian Electric?”

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