In September, the Hawaii Public Utilities Commission took the unusual step of ordering a solar farm developer and a community group to use mediation to resolve a bitter dispute over a planned project to power more than 11,500 homes.
The association listed a litany of concerns ranging from pollution and the protection of native plants to electricity price impacts, and said it wouldn’t support the project unless the developer addressed their issues.
Maui laws only require PUC approval for such projects, but the commission had approved the association’s request to intervene.
However, with the assistance of a retired Maui circuit court judge over two days in September, the two parties struck an amicable deal, unwinding the kind of tensions that all too often lead to disruptive protests or years of costly legal delays.
Benefits packages are a common tool used by developers to win over community support. But it’s less common to include legal consequences for developers who fall short on fulfilling these pledges. Advocates said it could be a model for future disputes over clean-energy projects.
“This is a totally unprecedented thing — that there is now an enforceable community benefits package for an energy project in Hawaii,” said Lance Collins, a Maui attorney who serves as a spokesman for the preservation association. “That means if they don’t do what they’ve agreed to do, we can take them to court and make them do it.”
On Friday, the PUC approved the agreement between MECO and Innergex.
Next the Maui Planning Commission will vet the solar farm for a special use permit required to develop the project on agricultural lands. Expected to come online in 2023, the solar farm would be built on former pineapple fields owned by Maui Land and Pineapple Co.
James Griffin, chairman of the PUC, said the situation marks the first time the commission has used mediation to resolve a contested case. He said he’s encouraged that a dispute that had been “so contentious” was resolved in less than 30 days.
“Mediation was the key step here,” said Griffin, adding that it could become a template for the PUC when dealing with contested cases over renewable energy projects.
“We didn’t exactly know how it was going to turn out,” he added. “When we held the hearing it seemed like the parties were pretty far apart and we hoped for the best, but they were able to come together to everyone’s benefit.”
In addition to funding for West Maui community groups, the WMPA brokered a prevailing wage for at least 80% of Kahana Solar’s non-supervisory workers and a pledge from the developer to try to hire locally before recruiting workers from outside the state.
As part of the deal, the developer also agreed to restore the solar farm site to its original condition at the project’s end.
The WMPA agreed to withdraw from the case, making it eligible for final PUC approval.
The final agreement, which builds on an initial framework laid out by Kahana Solar, is more detailed, setting out dollar amounts, funding recipients and timelines. It also has the legal teeth to hold the developer accountable to its promises. The WMPA could take the developer to court if it fails to fulfill the agreement.
“In most cases, (renewable energy project developers) don’t agree to do anything — that’s the problem,” said Collins, who has represented opponents of the Na Pua Makani wind project in Kahuku on Oahu and the Paeahu Solar project in East Maui.
“They just sort of have their marketing people say, ‘Well, we’ll give community benefits,’ but it’s not enforceable. It’s basically just on the scout’s honor of the developer that they’re going to follow through,” he added.
Collins said he’d like the PUC to make the community benefits package a standard part of its approval process, adding that it shouldn’t require a community group to hire attorneys and intervene in the process.
Innergex spokeswoman Myriam Bernede-Martin said the Canada-based company is happy with the agreement formed during mediation with the WMPA and stressed it reflects the community benefits package it originally proposed.
In addition to Kahana Solar, Innergex has three other solar energy project proposals pending in Hawaii, including the Paeahu Solar project that would power nearly 7,000 South Maui homes.
Nearby residents have opposed Paeahu Solar, expressing concerns about drainage and the proximity of the project to their homes. A group called Pono Power Coalition also has filed an appeal of the PUC’s decision to approve the project with the Hawaii Supreme Court. In that case, Collins is representing Pono Power Coalition.
Collins said the South Maui and West Maui solar projects present a good compare-and-contrast example of the same developer encountering community pushback with two different results, and the positive impact that mediation can have on disputes.
Collins also is representing a community group that’s trying to persuade the Hawaii Supreme Court to strike down a plan that allows Na Pua Makani to kill about 51 endangered Hawaiian hoary bats over the course of 20 years.
Enshrining a community benefits agreement in the PUC project approval process, Collins said, could help prevent similar community conflicts from happening in the future.
“The PUC wants these projects to get built,” he said. “They don’t want them stuck in years and years of protracted court litigation.”
Civil Beat’s coverage of Maui County is supported in part by a grant from the Nuestro Futuro Foundation.
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