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Oral Argument Before the Hawaii Supreme Court–SCWC-15-0000640

No. SCWC-15-0000640, Thursday, June 30, 2016, 8:45 a.m.

In the Matter of the Application of MAUI ELECTRIC COMPANY, LIMITED, for Approval of the Amended and Restated Power Purchase Agreement With Hawaiian Commercial & Sugar Company.

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

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorneys for Petitioners Sierra Club:
Isaac H. Moriwake and Kylie W. Wager

Attorneys for Respondent Maui Electric Co., Inc.:
Randall C. Whattoff, James Abraham, and Rebecca Dayhuff Matsushima

Attorneys for Respondent Public Utilities Commission:
Thomas C. Gorak and Mark J. Kaetsu

Attorneys for Dept. of Commerce and Consumer Affairs:
Jon S. Itomura, Lane H. Tsuchiyama, and Edward M. Knox

NOTE: Order accepting Application for Writ of Certiorari, filed 04/05/16.

COURT: MER, C.J.; PAN, SSM, RWP, and MDW, JJ.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

Petitioner-Appellant Sierra Club applied for writ of certiorari from the Intermediate Court of Appeals’ January 20, 2016 order dismissing Sierra Club’s appeal for lack of jurisdiction.

This case arises from an amended power purchase agreement between Maui Electric Company, Ltd. (MECO) and Hawaiian Commercial & Sugar’s (HC&S), which would allow MECO to purchase electricity produced at HC&S’s Puʻunene Plant. MECO submitted an application to the Public Utilities Commission (PUC) for approval of the agreement. Sierra Club then filed a motion to intervene in the application proceedings or to participate without intervention, in order to address the environmental impacts of the agreement. The PUC denied Sierra Club’s motion, concluding, among other things, that Sierra Club’s interests in the proceeding were not distinct from those of the general public. Sierra Club filed a motion to reconsider, which was also denied by the PUC.

Sierra Club appealed the PUC’s orders to the ICA. MECO filed a motion to dismiss the appeal for lack of jurisdiction, which the ICA granted. The ICA noted that HRS § 269-15.5 allows an aggrieved person in a contested case to appeal from certain final PUC orders directly to the ICA. However, the ICA determined that the application proceedings did not constitute a contested case because the PUC was not required by law to hold a hearing. Thus, the ICA concluded that it did not have jurisdiction under HRS § 269-15.5 and dismissed Sierra Club’s appeal.

Sierra Club’s application for writ of certiorari presents two questions:

A. Did the ICA gravely err in failing to consider that a hearing was required by HRS §§ 269.27.2(d) and 269-16(b)?

B. Did the ICA gravely err in failing to consider that a hearing was required by due process?