The fate of dozens of endangered hoary bats was at the center of state Supreme Court arguments on Thursday in a case that could stall the operations of a controversial wind farm in Kahuku and raise the stakes for other renewable energy projects in Hawaii.
The legal challenge was the latest manifestation of growing community opposition to the positioning of clean-energy projects, including the Na Pua Makani wind farm on Oahu’s North Shore and the Hu Honua bioenergy plant on the Big Island.
In the hearing Thursday, an attorney representing the community group Keep the North Shore Country tried to persuade justices to strike down a plan that allows Na Pua Makani, which is operated by AES, to kill about 51 opeapea, also known as hoary bats, over the course of 20 years.
“It’s not about how much carbon dioxide emissions will be reduced compared to power generated by burning imported oil,” Lance Collins said in his opening remarks. “This case is about an administrative agency failing to follow the standards set by the Legislature regarding the protection of endangered species.”
The group has requested that the habitat conservation plan — a state-approved document that explains how Na Pua Makani plans to mitigate against the killing of any bats — be sent back to state regulators for further evaluation, which would make it difficult for the wind farm to operate.
The high court is considering whether the state has done enough to protect the endangered bat species as well as other legal questions surrounding the participation of a land board member in crafting the conservation plan and what to do with an improper email regarding the energy project that came from a state legislator.
Representatives for Na Pua Makani acknowledged that the project may kill some bats but said the benefits, including additional research conducted on bats and restoration efforts on the North Shore, should outweigh those concerns.
On Thursday, the justices decided to consider the arguments from Collins, the state and Na Pua Makani privately before releasing a decision at a later date.
The Kahuku wind farm has been the subject of past protests, including one that led to more than 200 arrests in 2019. In addition to concerns about bats, wind farm opponents and Kahuku residents have said the 568 foot turbines are too big and too close to their homes.
At Thursday’s hearing, Keep the North Shore Country said that the state did not do enough to protect the opeapea, which is important to Hawaiian culture. In the Kumulipo, the Hawaiian creation chant, the hoary bat is the last creature created before humans.
Associate Justice Michael Wilson asked how the height of the wind turbines could affect bat populations.
John Manaut, an attorney for Na Pua Makani, responded that the total surface area occupied by the turbines was more important than the height.
For instance, Na Pua Makani has eight windmills with 568 foot blades while a neighboring wind farm has a dozen windmills with shorter blades. Estimates for how many bats could be killed by the project were based off that neighboring farm since they occupy about the same surface area, according to Manaut.
Collins suggested that Na Pua Makani cherry picked data on bat killings to strengthen the case for their conservation plan as it moved through the state processes.
Several wind farms, including those on the North Shore, have previously asked the state to allow them to kill more bats after approaching their permitted limits. Na Pua Makani has already agreed to fund bat research as part of its mitigation efforts and to help restore bat habitats along the Poamoho Ridge.
Collins also argued that a member of the Board of Land and Natural Resources, Samuel Gon III, had been allowed to serve on a separate committee that made recommendations to the Land Board on the habitat conservation plan, which he said violated the community’s due process rights.
Ewan Rayner, the deputy solicitor general representing the state in the case, argued that nothing in state law prevents Gon from serving on both panels at the same time.
In 2016, Gon served on the Endangered Species Review Committee, a state panel that consults the land board on endangered species.
“Mr. Gon is exactly the reason why a juror is not allowed to serve as a witness in a case they serve as a juror, and definitely why a judge is not allowed to serve as a witness in a case where the judge is the fact finder,” Collins told the justices.
The community group, however, didn’t file an appeal to have Gon recuse himself until 2018.
Several of the justices, including Chief Justice Mark Recktenwald, pressed Collins on why the community group didn’t object to Gon’s participation in the BLNR vote in 2016, when the issue was first raised. It was also one of the points the state made in its pretrial statements.
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