Anyone wondering what key lawmakers want from Gov. David Ige’s nominee to the Hawaii Public Utilities Commission can look at a recent exchange between the outgoing PUC chairman, Jay Griffin, and Sen. Donovan Dela Cruz.

One of Hawaii’s most powerful lawmakers — he’s chairman of the Senate Ways and Means Committee —  Dela Cruz wanted the PUC chairman’s view on “firm renewable” electricity, which is typically generated by burning wood, biodiesel or natural gas produced from things like garbage and human waste.

Firm renewable projects in the works include Hu Honua Bioenergy, a controversial wood-burning project seeking approval on the Big Island. The launch has stalled amidst criticism from environmentalists and a lack of support from the Hawaii Consumer Advocate. Aside from concerns about carbon emissions, critics say Hu Honua’s electricity will cost more to produce than the going rate for new solar with battery storage projects.

Senate Ways and Means Chair Donovan Dela Cruz speaks to the Civil Beat Editorial Board, Wednesday, Feb. 2, 2022.
Senate Ways and Means Chair Donovan Dela Cruz says he wants to know the nominee to the PUC’s stance on firm renewable energy projects. Nathan Eagle/Civil Beat/2022

In addition, AES Hawaii, which operates a coal-fired power plant on Oahu, has proposed switching to firm renewables by burning wood after its current contract with Hawaiian Electric expires in September.

“The question is, what is the minimum amount of firm renewable that we need, and I don’t want you to guess,” Dela Cruz told Griffin earlier this year. Griffin is the outgoing commissioner who has taken a stand against projects like Hu Honua.

In a clear signal to Griffin’s replacement, Dela Cruz added: “I’m looking forward to the confirmation hearings of the new member so we can ask these questions.”

Now, Ige has nominated Naomi Uyeno Kuwaye, a Honolulu lawyer, to take Griffin’s spot.

In an interview, Dela Cruz said Kuwaye’s stance on Hu Honua will not be a litmus test for her confirmation. However, asked if he would still support Kuwaye’s confirmation if she echoed Griffin’s views against projects that burn stuff to make power, Dela Cruz acknowledged, “I would have a hard time, but I don’t want to speak hypothetically.”

Naomi Kuwaye
Gov, David Ige has nominated Naomi Kuwaye to replace Jay Griffin on the Hawaii Public Utilities Commission. Office of the Governor

Sen. Rosalyn Baker, who will preside over Kuwaye’s confirmation hearings as chairman of the Senate Consumer Affairs Committee, hasn’t scheduled hearings yet, her office said.

Meanwhile, although Kuwaye didn’t respond to interview requests, her record as a lawyer suggests she might be less inclined to side with environmentalists than Griffin has been.

In fact, Kuwaye has spent considerable time fighting conservationists as an attorney with Ashford & Wriston. In a profile of Kuwaye published soon after her nomination, long-time environmentalist Henry Curtis, noted that Kuwaye represented Hawaiian Electric in its controversial and ill-fated attempt to run high-voltage power lines along Waahila Ridge – a project that drew criticism from environmentalists, Native Hawaiian activists and Manoa residents.

Kuwaye has also represented big interests like Hawaiian Electric’s Big Island affiliate Hawaiian Electric Light Co., Kamehameha Schools, Kapolei Property Development and D.H. Horton, Curtis reported. She’s also done legal work for Hu Honua.

The PUC’s Revolving Door

Whether senators push Kuwaye and ferret out biases remains to be seen. It’s not unusual for professionals to go back and forth between working for the PUC and representing clients that appear before the commission. Carlito Caliboso, who served from 2003 to 2011 as PUC chairman, is now a partner with the law firm Yamamoto Caliboso, which specializes in energy and utilities law.

Catherine Awakuni Colon, who now heads Hawaii’s Department of Commerce and Consumer Affairs, previously bounced between all three main entities that control the electric business in Hawaii: the PUC, Hawaiian Electric and the Consumer Advocate, which advocates on the public’s behalf in PUC cases.

Hawaii’s ethics law generally allows this, as long as former public employees wait a year before representing clients before the agencies they worked for. The key, said Hawaii State Ethics Director Robert Harris, is that the limitation is a “post-employment restriction.”

Under Hawaii’s ethics code, nominees like Kuwaye do have to disclose sources of income in the past year, but only after they’re confirmed, Harris said. Speaking generally, and not about Kuwaye’s nomination, Harris said it might make sense to amend the ethics law to make disclosure required upon nomination so lawmakers could know about any potential conflict of interest during the confirmation process.

“It’s just a prudent move,” he said.

But that’s not the case now.

Honolulu lawyer Naomi Kuyawe has reportedly done work for the Big Island’s controversial Hu Honua project, as well as Hawaiian Electric. But it’s far from clear whether senators will be able to force Kuyawe to disclose all potential conflicts. Courtesy: Claudia Rohr/2018

For now, lawmakers wanting to find out about Kuwaye’s potential conflicts could run into another problem, said Randy Roth, a retired law professor of legal ethics.

Not only is Kuwaye not required to reveal her existing clients, Roth said, but Hawaii’s code of ethics for lawyers generally prohibits attorneys from revealing the identities of their clients. Kuwaye could ask her clients for permission to disclose their identities, Roth said, which some might be willing to do.

But, he said, “It’s predictable that some clients would just say, ‘No.’”

Senator: Expect Questions About Firm Renewables

Regardless of how deeply senators dig into Kuwaye’s potential conflicts, her stance on firm renewables is almost sure to come up. Dela Cruz this session sponsored a bill seeking to mandate that each island’s energy mix include at least 55% firm renewables.

Also, although the current law favors systems that generate power for the lowest cost to consumers, Dela Cruz’s bill would allow for more expensive firm renewable energy projects based on “long-term, direct and indirect economic, environmental, social, cultural, and public health costs and benefits, that may offset monetary costs.”

The House Energy and Environmental Protection Committee amended the bill to remove the 55% minimum for firm renewables on each island, among other changes.

Still, in an interview, Dela Cruz noted the Senate passed out his version of the bill, showing support for the firm renewables mandate. And it’s the Senate that will decide whether to confirm Kuwaye.

“I just want to make sure we get answers and clarity on questions and concerns we brought up in the past,” Dela Cruz said. “They shouldn’t be any surprise. It’s public.”

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