In a victory for Hawaii clean energy advocates, a state judge on Tuesday said state officials will have to take a hard look at applications from people requesting permission to put gas water heaters into newly built homes and not simply rubber stamp approvals.

State law generally requires all new single-family homes to have solar water heater systems. But the law carves out exceptions that lets the Hawaii Department of Business, Economic Development and Tourism grant variances allowing new home builders to install gas heaters in certain situations.

The lawsuit, brought by Earthjustice on behalf of the Hawaii Solar Energy Association and the Sierra Club, said DBEDT had violated the law by rubber-stamping the variance requests rather than exercising discretion when granting the exceptions.

Sierra Director Marti Townsend listens to HTA questioning of HTA Director Szigeti.
Marti Townsend, director of the Sierra Club Hawaii, said the ruling is a win in the fight against climate change. Cory Lum/Civil Beat

Will Giese, executive director of the Hawaii Solar Energy Association, hailed Hawaii Circuit Court Judge Jeffrey Crabtree’s ruling as “a massive victory for clean energy and the people of Hawaii.”

“Solar hot water is one of the most cost effective ways to save money on your electric bill while at the same time contributing to the fight against global climate change,” said Giese. “This decision is going to have positive impacts well into the future.”

Gov. David Ige’s office referred inquiries to the Attorney General’a office, which did not return calls.

Although Ige has been a proponent of clean energy – and a vocal leader in Hawaii’s plan to produce 100 percent of the electricity produced in the state with renewable resources by 2045 — it was his department that had been rubber-stamping the variance requests.

The case centered on an interpretation of one of the variance requirements. The solar water heater statute’s plain language says in part that DBEDT must “accept” a variance application if “at least one other gas appliance is installed in the dwelling.”

The plaintiffs argued that DBEDT had improperly interpreted the word “accept” to mean “approve.” That, the plaintiffs argued, caused DBEDT to improperly view its role granting variances as merely a formality – a “ministerial” function in legal parlance – over which it exercised no discretion.

The result was DBEDT almost always granted the variances. Between January 2010 and August 2018, the plaintiffs alleged, DBEDT received 6,460 unique variance applications and approved 6,452 or 99.8 percent of them. Of the approved variances, approximately 6,096 or 94.4 percent were for the installation of gas water heaters.

To bolster their argument, the plaintiffs pointed to the statute’s legislative history, including a portion of one of the act’s amending the solar water heater law that says “the variance provided for … will be rarely, if ever, exercised or granted, because the burden of proof will lie with the applicant to demonstrate that a solar water heater system, regardless, of location or circumstance, is not cost effective in the context of a thirty-year mortgage term.”

DBEDT’s attorneys had asked Crabtree to dismiss the case on grounds that the plaintiffs didn’t have standing to sue because the plaintiffs had not suffered any harm because of DBEDT’s practice. But Crabtree denied that request and instead granted the plaintiffs’ motion for summary judgment.

“This ruling is powerful because it is helping Hawaii follow through on its commitment to protect the climate,” said Marti Townsend, director of the Sierra Club Hawaii. “We know that gas-powered water heaters are more polluting and more costly than solar alternatives and we should have phased them out of new home construction years ago.”

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