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Oral Argument Before the Hawaii Supreme Court — SCOT-20-0000569

No. SCOT-20-0000569, Thursday, April 22, 2021, 2 p.m.

In the Matter of the Application of HAWAII ELECTRIC LIGHT COMPANY, INC. For Approval of a Power Purchase Agreement for Renewable Dispatchable Firm Energy and Capacity.

The above-captioned case has been set for argument on the merits at:

The oral argument was held remotely and was live streamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts.

Attorneys for Appellant Hu Honua Bioenergy:

Bruce D. Voss and John D. Ferry III of Bays Lung Rose & Holma; Dean T. Yamamoto, Wil K. Yamamoto, and Bradley S. Dixon of Yamamoto Caliboso

Attorneys for Appellee Hawaiʻi Electric Light Co.:

Marissa L.L. Owens; David M. Louie, Joseph A. Stewart, Bruce Nakamura, and Aaron R. Mun of Kobayashi Sugita & Goda, LLP

Attorney for Appellee Tawhiri Power LLC:

Sandra-Ann Y.H. Wong, Attorney at Law, a Law Corporation

Attorneys for Appellee Public Utilities Commission:

Kimberly T. Guidry, Solicitor General, and Kalikoʻonalani D. Fernandes, Deputy Solicitor General

Attorneys for Appellee Life of the Land:

Lance D. Collins of Law Office of Lance D Collins and Bianca K. Isaki of Law Office of Bianca Isaki

COURT: Recktenwald, C.J., Nakayama, McKenna, Wilson, and Eddins, JJ.

[  Listen to the entire audio recording in mp3 format  ]

Brief Description:

Appellant Hu Honua Bioenergy, LLC (“Hu Honua”) brings this direct appeal to challenge the Hawaiʻi Public Utilities Commission’s (“PUC”) Decision and Order No. 37205, “Denying Hawaii Electric Light Company’s Request for A Waiver And Dismissing Letter Request For Approval of Amended And Restated Power Purchase Agreement” and Decision and Order No. 37306, which denied Hu Honua’s motion for reconsideration of Order No. 37205.

Hu Honua is the developer of a renewable energy plant on Hawaiʻi Island. In 2017, Hawaii Electric Light Company, Inc. (“HELCO”) and Hu Honua sought the PUC’s approval of a proposed contract under which HELCO would purchase renewable energy from Hu Honua’s plant (the “Amended PPA”). The contract had not been selected through competitive bidding. In a single 2017 decision and order (the “2017 D&O”), the PUC both granted HELCO a waiver from the PUC’s competitive bidding framework and approved the Amended PPA.

In Matter of Hawaiʻi Electric Light Company, Inc., 145 Hawaiʻi 1, 445 P.3d 673 (2019), this court vacated the 2017 D&O and remanded the case with instructions concerning the evidentiary hearing this court determined was necessary in connection with the PUC’s consideration of the Amended PPA. On remand, the PUC re-opened the 2017 docket. Because it interpreted this court’s vacatur of the 2017 D&O as nullifying the waiver granted as part of the 2017 D&O, the PUC reconsidered whether to grant HELCO a waiver from the competitive bidding framework. Subsequently, the PUC issued Order No. 37205, denying HELCO’s request for a waiver. Because it did not grant HELCO a waiver from the competitive bidding framework, the PUC declined to hold an evidentiary hearing or consider the Amended PPA. Hu Honua moved for reconsideration of Order No. 37205. The PUC denied that motion in Order No. 37306.

Before this court, Hu Honua argues that in issuing Order No. 37205 the PUC deprived Hu Honua of its property interest in the waiver without due process, ran afoul of our instructions in Hawaiʻi Electric Light Company, shirked its obligations under HRS § 269-6(b), and violated various procedural and administrative statutes.