From Kaua`i to the Big Island, the plans of utilities to build large, fossil-fuel-guzzling power plants or transmission lines of questionable need are being challenged by citizen groups. Here’s an update on four of the most contentious projects on Kaua`i, O`ahu, Maui, and the island of Hawai`i.
Kaua`i Power Plant Draws Court Challenge
A battle over a new power plant proposed for Hanama`ulu has turned up unexpected findings, including the fact that the Kaua`i Planning Commission has for years been illegally issuing special permits – including the one awarded last September for Kaua`i Electric’s proposed plant.
How the project will progress depends upon the result of a court appeal filed by the community group Citizens for Clean Air. In the appeal, filed in Kaua`i District Court last October, the plaintiffs asked the court to void permits for the plant, remand the issue back to the commission, and ensure that proper public hearings are held. The appeal also contends that the commission knowingly violated state and county rules.
On September 9, 1999, the commission approved Kaua`i Electric’s proposal to built a 26.4 megawatt power plant on nearly 15 acres owned by Lihu`e Plantation. The site, a former sugarcane field, is located between downtown Lihu`e and Hanama`ulu, a low-income, predominantly Filipino community. The proposal passed, despite a large community assemblage “in full and angry force” against the project, as one participant put it, and despite the county’s lack of administrative rules governing such an approval.
According to state law, counties may rule on permits for changes in land use on small agricultural lands of 15 acres or less. However, the county must also have rules of procedure regarding permit approval of these changes. Kaua`i never adopted such rules, yet for years has been issuing permits.
After Citizens for Clean Air filed the appeal, the county admitted its error and its Planning Ddepartment quickly drafted rules cobbled together from other existing permit procedures. A public hearing on the rules was held on January 13, where Citizens for Clean Air attorney John Rapacz and Carol Bain of the Kaua`i chapter of the League of Women Voters criticized them for failing to provide for adequate public input.
Rapacz told Environment Hawai`i that the rules have many problems: “Unlike other permits, there is no requirement for a planning director’s report or recommendation in the new rules. In other permits, a hearing is held after a report and recommendation are made.”
“There is also a problem with the timing of the public’s right to participate,” Rapacz continued. “Applicants seeking special permits have to mail notices of a public hearing to nearby residents, 12 days before the hearing,” he says. “The neighbors thus receive a notice nine or 10 days before the hearing, and if one of the immediate neighbors has a problem with the application, they must file their opposition seven days before the hearing. The notice also doesn’t inform adjoining property owners of their right to intervene.”
At the January meeting, Kaua`i Electric attorney Walton Hong contended that, “The proposed rules and regulations will merely put down in black and white what has been the practice and what will continue to be the practice in the processing and consideration of special permit applications.”
A motion to adopt the rules made by Commission member Ed MacDowell failed, as other members said they needed more time to consider comments made during the hearing. The Commission then voted to defer the matter until its January 27 meeting.
“It was an answer to prayer that four of the commissioners prevailed on their move to consider the suggestions put to them at the hearing,” Dely Sasaki wrote to Citizens for Clean Air members, after the meeting. Sasaki is a Hanama`ulu resident and co-chair of Citizens for Clean Air.
The results of the commission’s January 27 meeting were not known at press time.
The reasons for the construction of the plant “are immaterial at this point,” says Gabriela Taylor, a plaintiff in the appeal of the permit. “Whatever the reason is, it’s not appropriate. All of the major utilities in the United States are going away from diesel fuel and toward sustainable energy because of the dangers of the waste products from burning fossil fuelsÉ. We have this pristine environment. We don’t catch the vog [volcanic smog from the Big Island], as do other islands. When you start at zero, maybe the pollution doesn’t look like much, but the truth is, it’s contamination of this pristine place.”
Alternative technologies are ideal for the islands, she goes on to say: “We have the sun, water, and wind here. There are fuel cells, there are all sorts of technological breakthroughs in generating electricity in people’s houses. Building a power plant to serve the needs of an island is obsolete.”
Despite these factors, building a power plant “is the easiest thing to do,” says Rapacz. “That’s the bottom line. It doesn’t require the exploration of new tech. It’s a known product.
While Kaua`i Electric insists that this plant will have only one exhaust stack, the utility does plan to expand. According to its own reports, the proposed plant is phase one of its Lihu`e Energy Service Center. Phase two, to be constructed in 2015, will be another plant generating up to 55 megawatts. The utility claims that the phase-one power plant is necessary to meet the needs of new residential developments, and must be built within two to four years.
Rob Culbertson, a Lihu`e resident who supports alternative energy, told Environment Hawai`i that growth on Kaua`i consistently falls below projections. The new power plant is being pushed by these projections, he says, which are created by “certain factors on the island that are pro-business.”
“People don’t want that kind of rapid growth,” he says. “There has to be a vision of what we want for Hawai`i. It’s part of a bigger picture. Sugar is going out, and a lot of land is now up for sale. What do we do with it? Build tract houses and resorts, or develop sustainable agriculture?”
As proposed, the power plant will be built downwind of the residential neighborhoods of Hanama`ulu and Isenberg, which are both in the Lihu`e area. While Kaua`i Electric claims that the location is ideal, Culbertson says it was chosen after three others were considered and rejected because of community opposition. One of the proposed sites was downwind of Kaua`i Community College; another was in Kilohana, which was nixed when residents threatened to sue; and one was at the airport. This last site seemed the most appropriate, Culbertson says, but was rejected after helicopter pilots complained about having to navigate around smokestacks and the Board of Water Supply worried that it did not have enough non-potable water at the site to meet the plant’s needs.
O`ahu: Wa`ahila Ridge Transmission Line
For most of the last decade, the Hawaiian Electric Company (HECO) has made no secret of its plans to build a new 138 kilovolt (kV) transmission line to connect the Kamoku substation in Moili`ili to the Pukele substation in Palolo Valley. The company’s preference is to run the lines along Wa`ahila Ridge, which forms the eastern rim of Manoa Valley.
Original plans, described in a 1998 draft environmental impact statement, called for the lines to be carried across Wa`ahila Ridge on nine steel poles. Two existing 46 kV lines already cross Wa`ahila Ridge, but the new lines would be much higher and more visually obtrusive. Following a huge outcry of Manoa residents and others concerned with the degradation of one of urban O`ahu’s most striking panoramas, HECO – in a revised draft EIS – has reduced the number now to seven, which, in a sop to opponents, it says it will paint green. The utility was required to revise its first draft environmental impact statement when the Department of Land and Natural Resources rejected the document. (DLNR approval is required, since the proposed power line would cross state-owned land in the Conservation District).
The revised document, weighing in at 103 pounds and bound in 10 volumes, was published on October 23, 1999. The public comment period ended on December 7.
Once more, the draft document has drawn fire from high-powered critics. Among them are Donald W. Aitken, the Hawai`I-born senior staff scientist of the Union of Concerned Scientists’ energy program, and the University of Hawai`I’s Environmental Center. The Union of Concerned Scientists is a national, non-profit organization made up of scientists bringing their expertise to bear on issues of public concern. The Environmental Center is a special unit of the university that was established by the Legislature to review environmental impacts of projects statewide.
Aitken’s extensive remarks – they run to 14 single-spaced pages – focus on the very need for the project in the first place. HECO says the new, beefed-up lines are needed to address system overload.
Aitken writes: “The system overload is not a present problem, but anticipated to be a problem from continued projected demand growth to where failure of one line in the Northern Corridor (serving the Pukele substation) during maintenance could leave the remaining one overloaded, and hence subject to shut down, resulting in a system blackout to 18 percent of O`ahu’s load, including the economically important area of Waikiki. I do not contest this argument, but just when this is projected to become a problem has undergone some remarkable readjustments in just the past two years since the issuance of the original Draft Environmental Impact Statement (DEIS). There is now a real question as to whether this will ever become a problem, if reasonable alternatives are followed.
“For example, comparison of the 1995 Kamoku-Pukele 138kV Transmission Line Alternatives Study (RDEIS, Appendix C1) with the 1999 RDEIS reveals how quickly a firmly supported assertion of ‘need’ can be modified by an actual change in demand, and how quickly HECO is willing to modify its arguments.
“In the 1995 analysis, HECO asserted that “the recommended alternative would need to meet the following concerns:
The overload of the third line to Ko`olau Substation when the other two lines feeding the substation are out of service, projected at a system load of 1213 megawatts (MW) in the year 1998.” This was revised to the year 2008 in the 1998 RDEIS.
1. The overload of the third line to the Downtown area substations when the other two lines feeding the area are out of service, projected at a system load of 1,242 MW in the year 2000.” This was revised to the year 2016 (or by 2005 if the Honolulu Power Plant is retired early) in the 1998 RDEIS.
2. “This shows that the modest reductions in system demand actually realized, beginning in 1996, were sufficient to alter these particular arguments for “need” by 4 years in the first instance, and 5 to 16 years in the second! This, in turn, provides evidence from HECO’s own changing estimates of my assertion that a DSM [demand-side management] program alone may have the potential for shifting at least these elements of ‘need’ for the Kamoku-Pukele line for an indefinitely long period.”
Aitken also faults HECO analysts for their misleading use of statistics in making demand projections. The revised draft EIS notes that in 1998, HECO’s peak loads actually decreased, reversing a trend of growth of about 2 percent a year from 1986 to 1997. Yet the document projects loads to increase at an average annual rate of about 1 percent. “This interpretation,” Aitken writes, “is supported by a remarkably misleading interpretation of statistics É that totally ignores the statistically significant reversal in the growth trend that actually occurred, beginning in 1996.”
“This same remarkably misleading and statistically inaccurate interpretation of the HECO electrical demands is continued with the overall system demand presented in Fig. 2-9. There a system demand increase of perhaps 0.7 percent per year from 1992 through 1997 is followed by an abrupt decline of 3.7 percent in 1998. This is ignored in projecting from 1989 through 2005 as though 1998 never happened!
“What is going on? Is electrical demand really growing in the HECO system, or has it turned a corner toward stability, or is it actually declining, and if so for how long and why? I do not know the answers to these questions, but neither does HECO.”
Aitken takes HECO to task also for an unrealistic analysis of alternative means (other than increased power generation capacity) to address future demand. “Perhaps the most misleading grounds on which various generation alternatives were dismissed in the RDEIS was to evaluate each in its potential for providing the full 200 MW additional capacity alleged to meet the ‘need’ in the East O`ahu area. A more realistic appraisal of alternatives would naturally consider a portfolio of alternatives, with each measure or technology contributing some amount toward a portfolio total. The portfolio would initially include the most cost-effective of the alternative technologies (e.g., wind) and smaller amounts of emerging technologies (e.g., photovoltaics and commercial-scale fuel cells), but none in any great initial amountÉ
“For example, could a modest wind farm be developed in East O`ahu (perhaps 10-20 MW, or 13 to 25 of the currently state-of-the-art 750 kW turbines), taken with expanded solar water heating, the progressive adoption of building-integrated photovoltaics, and a few of the presently available 200 kW fuel cells, to provide a portfolio of strategies that meet a total of just 1 percent of the load growth for the East O`ahu area for a year? I actually do not know as I write this if this is the most economic combination of alternatives, but neither does HECO, for no such portfolio has been either considered or modeled.
“It makes no sense to dismiss potential alternative technologies with a few paragraphs of words, as was done in the RDEIS. Instead, the responsible EIS analysis should include mathematical econometric modeling results of gradually phased in portfolios of alternative generation technologies in careful economic balance with DSM strategies, with the results then used to compare with the aims and economics of the construction of the new transmission line!”
Should the Public Utilities Commission – against Aitken’s counsel – decide HECO should go ahead with the transmission line improvements, Aitken argues that the line should be placed underground. The additional cost of a fully underground line, which HECO says would be $8 million more than the Wa`ahila Ridge option, “is in itself a remarkably small marginal cost difference É amount[ing] to an additional cost of 12.5 to 16.5 cents per typical residential bill per month.”
An Underwater Route
In its comments, the UH Environmental Center also challenged the claim of HECO that the transmission line was needed to improve reliability of service. Moreover, university reviewers suggested, as did Aitken, that if reliability were of paramount importance, the Wa`ahila Ridge line would be far more vulnerable to outages from hurricanes and other inclement weather events than would an underground line. The university reviewers went on to suggest that the best option yet – one that HECO did not consider – would be to place transmission lines underwater from Kahe Point (on the Wai`anae Coast, where HECO’s largest power generation plant is sited) to Waikiki. “An all-undersea route is highly desirable when considering reliability,” they wrote. “It would provide a separate and direct supply of power to the Kamoku Substation, and would thus minimize the electrical service disruption that a storm such as Hurricane `Iniki could produce.”
The cost of such a line would be less than $1 million per mile, they write. “Even allowing for engineering, route survey, and shoreline crossing costs É an overall cost of $30 to $35 million would seem reasonable. This is close to the cost of the overhead route now being considered. The cost is nearly the same but the advantages in safety and reliability are much greater.”
Maui: Council Panel Defers Vote on New Power Plant
The Land Use Committee of Maui’s County Council has thrown a monkey wrench into Maui Electric Company’s progress in obtaining permits needed for a new power plant. The plant, if built, would be capable of generating 232 megawatts of power at full build-out (20-30 years from start of construction). MECO seeks to build the plant on about 66 acres of land at Waena, near Pu`unene in central Maui.
On January 3, the Land Use Committee voted to recommend full council approval of an amendment to the community plan for the Waena site. However, the committee stopped short of approving actual industrial zoning for the area, pending MECO’s completion of an updated integrated resource plan, or IRP. MECO was to have presented an updated IRP to the state Public Utilities Commission last September, but the utility asked to have the deadline pushed back to May 2000.
Yet the very authority of the County Council to impose zoning conditions on MECO has been challenged by the Public Utilities Commission. On October 22, PUC counsel Kevin Katsura issued an opinion that any conditions that the county would place on MECO would usurp the PUC’s exclusive authority to regulate utilities.
Land Use Committee chair J. Kalani English had floated the idea that the council might, through the zoning process, place restrictions on MECO that would encourage it to pursue development of alternative energy sources more aggressively.
But, according to Katsura, such conditions “would directly interfere with the commission’s exclusive authority to regulate the manner in which an electric utility meets its obligation to provide electric service within its franchise area and the rates and services of Hawaii’s electric utilities.” To support his position, Katsura took note of a Hawai`i Supreme Court ruling that rebuffed Kaua`i County’s effort to regulate through zoning the height of utility poles.
Katsura’s position was supported by the council’s own attorney, deputy corporation counsel Kelly Cairns. According to reports in The Maui News, Cairns “also advised against imposing a condition that would require MECO to spend a percentage of its revenue on alternative energy research.” Instead, she suggested the council attempt to influence the PUC through participating in the IRP process.
Big Island: HELCO Files Supreme Court Appeal
The eight-year-plus saga of the Big Island utility to expand its power plant at Keahole has been taken to the Supreme Court. The Hawai`i Electric Light Company (HELCO) is appealing a judge’s ruling that determined the company had to abide by Department of Health noise limitations during construction of the expansion. The regulations, HELCO claims, are unconstitutional. Opponents of the plant say HELCO simply cannot meet the noise standards.
In addition, HELCO is appealing a ruling by Third Circuit Judge Ronald Ibarra that it pay court costs and attorney fees of plaintiffs challenging the utility’s right to build the expansion and is asking the Supreme Court to overturn the judge’s determination that HELCO willfully abused the discovery process by withholding for years documents that could have affected the outcome of litigation.
That’s not all. The Board of Land and Natural Resources in October voted 5-0 that HELCO would have to abide by 15 standard conditions of Conservation District Use Permits, including the requirement that it complete construction within three years of the onset of the project, and that it be in compliance with all other applicable state, federal, and county regulations. With that ruling in hand, opponents of the expansion have the judge’s blessing to present the Land Board with their list of suspected Conservation District permit violations and reasons why they feel that HELCO could never be in compliance with some permit terms. Once that list is delivered to the board, Judge Ibarra has set a deadline of 30 days for the board to act on it.
Mike Matsukawa, attorney for the Keahole Defense Coalition and Peggy Ratliff, who leaves near the plant, was still preparing the list as of press time.
The Land Board vote was “such a shock to me,” said Matsukawa, who has been battling HELCO and the Land Board for years on the matter of the Keahole expansion. He attributes the positive vote to the ability of board member Colbert Matsumoto to participate now that he has divested himself of shares of HELCO’s parent company, Hawai`i Electric, Inc. On earlier votes, Matsumoto was prevented from participating in the discussion and the voting because of his declared conflict.
Matsukawa also sees a major change in the state’s conduct in the litigation occurring as a result of the departure of deputy attorney general Randall Young, who has been replaced by Allan Watada. Young, Matsukawa says, did not always convey to the board developments in the various court cases that have been filed over HELCO’s expansion. The board, which allowed the expansion to occur through default (not having enough votes to override the project), has been centrally involved in the court cases.
A Range of Concerns
The noise issues and Conservation District violations do not begin to exhaust the list of areas where Matsukawa sees HELCO as being in breach of the law. One of the most important issues to him is that of the validity – or lack of it – of changes effected to the land patent that allows HELCO to occupy the Keahole site.
“We always insisted that the patent was important, because of deed restrictions,” he told Environment Hawai`i. “One of the items in our enforcement action was whether the patent itself had been improperly amended back in 1984, in a way that watered down the state’s right to repurchase the property.” The reason the patent came into play, he says, “was because anything that interferes with or prejudices that buy-back right would be inconsistent with the state’s ability to protect its interests.” The buy-back clause originally gave the state the right to oust HELCO from the land unilaterally, with payment of the original $59,000 plus the depreciated value of improvements. HELCO’s 1984 amendment allows the buyback option to be exercised only if HELCO abandons the property or ceases to use it for utility purposes.
“The judge ruled the patent had been improperly amended,” Matsukawa says, “so the original buyback clause is still in effect.” The process of amending land patents requires legislative approval, Matsukawa says – and in the case of the 1984 amendment, that approval was never sought.
Matsukawa said he would be bringing this matter to the Land Board’s attention at the same time he presents it with the list of permit violations.
For Further Reading
MECO: Maui Tomorrow’s web site has extensive coverage of developments concerning the Waena power plant: [url=http://www.maui-tomorrow.org/waena.html]www.maui-tomorrow.org/waena.html[/url]
HELCO: For background on the Keahole controversy, see these past issues of Environment Hawai`i: May 1998 (cover); April 1998 (cover); April 1997 (Island Watch column); June 1994 (cover). They are available through our on-line archive.
– Teresa Dawson and Patricia Tummons
Volume 10, Number 8 February 2000