Life of the Land`s Climate Campaign started more than 2o years ago.

Pat Tummons, editor of Environment Hawai`i, spoke about the dangers of climate change at Life of the Land`s “Energy for the Millennium Conference” held at Chaminade University on November 5-6, 1999.

Life of the Land submitted comments to the Hawaii Energy Strategy 2000 Report written by Department of Business, Economic Development & Tourism. “The effects of global warming on Hawaii cannot be overstated… raising the consciousness of the people of Hawaii is an important step in reducing our emissions. Prohibiting the construction of any more fossil fuel burning power generation plants.”

Life of the Land filed testimony with the Public Utilities Commission in 2004. “As the global warming issue heated up in the early 1990s, the US oil and coal industries launched a massive smear campaign based on deception, misinformation and spin.

“The fossil fuel industry falsely stated that climate change analysis was based on scientific uncertainty. They relied heavily on fossil fuel financed research, by paid scientists, publishing non-peer reviewed articles in obscure publications.”

“The United Nations Intergovernmental Panel on Climate Change (IPCC) conducted the most vigorous peer-reviewed scientific collaboration in world history. Over 2000 scientists from 100 nations, including almost 1000 US scientists, participated. In 2001, the IPCC announced that global warming was occurring at rates faster than expected.

“The Pentagon has analyzed the potential harm from climate change: “Climate Impacts: A Worst-Case View of Global Change … Defense Department report warns of ‘abrupt’ global warming impact… A pentagon report made public last week lays out the worst-case impact from an abrupt change in climate, driven by global warming. The report considers a scenario of a fast change in climate, rather than a more gradual one in which technological innovation could help stave off disaster.”

Hawaiian Electric Company proposed a new Campbell Industrial Park power plant in 2005. Kat Brady, Life of the Land Vice President for Social Justice, submitted testimony in 2006:

“Life of the Land will show that the course that we are on, and the proposal before you, is an unwise choice for Hawai`i and the planet. We will bring forth witnesses who will share their expertise in the areas of science, environment, economics, and social justice.”

“We will then ask the Public Utilities Commission to review the science and data we have presented and consider the responsibility inherent by this docket in determining Hawai`i’s energy future.”

“Life of the Land asks that we all our collective responsibility to each other as neighbors and our individual responsibility as good global citizens living on a planet that human activity is heating up and that is facing numerous social, economic, environmental, and human catastrophes.”

“Hawai`i no longer has the luxury of looking only at a proposed project. We must see this project in the context of what his happening right now and what impacts any project will incur.”

“Scientists have concluded that human activities are contributing to global warming by adding large amounts of heat-trapping gases to the atmosphere. Our fossil fuel use is the main source of these gases.”

“Life of the Land urges the Commission to take the long view and, as indigenous peoples throughout the world advocate, look seven generations down your family line to determine the impacts of any action before any such action is commenced.”

“This is responsible leadership and good global citizenship and we urge the Commission to consider all the facts before deciding what Hawai`i’s energy future will be – clean, renewable, and self-reliant or dirty, imported fossil fuel, creating even more dependence on unstable fossil fuel producing nations.”

“Life of the Land’s case will prove that we have little choice in light of all the scientific data and evidence that human activity, especially the burning of fossil fuels, has placed our planet in peril.”

Life of the Land Closing Statement at the Evidentiary Hearing for the new power plant was held on December 13, 2006. “Across the nation public utilities commissions are wrestling with the issue of climate change. Some agencies are taking bold steps on their own. Some are waiting for legislative directives. Some are defending the business-as-usual approach. Hawaii is at a crossroads. HECO’s argument is they will lose jobs and face uncertainty if things change. But things always change. And the threat from climate change has the potential to overwhelm  other issues.”

HECO filed its third Integrated Resource Planning (IRP-3) application in 2003. Life of the Land was the sole intervenor. Life of the Land agreed to end the proceeding in exchange for a condition that IRP-4 address climate change. HECO, the Consumer Advocate agreed. The PUC approved the Settlement Agreement.

HECO held a Climate Change and Global Warming technical session in 2007. The format of the technical session was developed with input from Life of the Land. Fifteen speakers with a broad range of expertise provided a balanced discussion of the issues.”

Life of the Land released “Wayfinding: Navigating Hawai`i’s Energy Future” in 2012 by Henry Curtis (159 pages)  “This Report is dedicated to the nearly 20,000 Americans who die each year from fossil fuel air emissions and to the hundreds of millions of people worldwide that climate change will displace.”

“Externalities refer to costs and impacts not reflected in the price of products. That is, they are costs shifted from producers to society at large. The biggest externality of all is climate change. Another key externality is environmental justice, whereby extraction and production facilities are often located in economically challenged communities, minority communities, and/or rural areas and then transported to large urban (and often more wealthy) communities to consume.”

Hu Honua Biofuels

Hu Honua proposed clear-cutting forests and burning the trees to generate electricity to be sold to Hawaii Electric Light Company (HELCO). The PUC Approved  the HELCO-Hu Honua Amended and Restated Power Purchase Agreement (PPA). Life of the Land appealed. Chief Justice Recktenwald wrote the 5-0 decision upholding the appeal, filed May 10, 2019.

Excerpts of Hawaii Supreme Court Decision

LOL asserts that `its members are located in Hawai`i and are directly concerned with preventing climate change impacts, biodiversity, and the spread of invasive species, all of which are affected by GHG emissions, as well as other environmental and public interest impacts of [the] PUC’s decision making on the [Amended PPA].` Consequently, pursuant to article XI, section 9 of the Hawai`i Constitution and HRS Chapter 269, as interpreted by this court in MECO, LOL has shown a constitutionally cognizable property interest in this case.

PUC’s administrative rules do not require claimants to request a contested case hearing. Thus, LOL did not fail to adhere to the applicable agency rules in seeking judicial review of its agency appeal without requesting a contested case hearing.

The PUC was required to expressly consider the reduction of GHG emissions in deciding
whether to approve the Amended PPA. In determining whether the PUC satisfied this duty pursuant to HRS § 269-6(b), this court `should ensure that the agency . . . [made] its findings reasonably clear. The parties and the court should not be left to guess . . . the precise finding of the agency.`”

Because the 2017 D&O does not reflect that the PUC explicitly considered the reduction of GHG emissions in approving the Amended PPA, we conclude that the PUC failed to comply with HRS § 269-6(b).

Without such explicit findings, this court cannot determine whether the PUC adequately considered GHG emissions as required by HRS § 269-6(b).

Where the PUC’s failure to make sufficient findings leaves this court unable to determine the validity of its conclusions, it is appropriate to remand the case to the PUC for further proceedings.

Gas Company Rate Case

Hawaii Gas (HG) filed an application with the Public Utilities Commission for a rate increase in 2017 to cover costs including infrastructure needed for the importation of Liquefied Natural Gas (LNG). The Public Utilities Commission admitted Life of the Land, Hui Aloha ʻĀina o Ka Lei Maile Aliʻi, (KLM), and 350Hawaii into the proceeding to discuss climate change impacts.  The three groups submitted testimony in 2018.

Life of the Land testified:

“To compare renewables with fossils, a life cycle financial cost analysis needs to be conducted. This allows for an apples-to-apples comparison. Similarly, natural gas, coal, and petroleum have different emission impacts at different stages of their lifecycles. An apples-to-apples comparison of emissions requires a lifecycle analysis; one that includes the relative potency of different greenhouse gases.”

“The Production-Based GHGE Accounting System (`PAS`) is well established, serving as the basis for the Kyoto Protocol, the United Nations Framework Convention on Climate Change, and the Intergovernmental Panel on Climate Change (`IPCC`). The PAS methodology has several well-identified weaknesses including the promotion of leakages, the failure to regulate  international travel, and climate injustice.”

“Starting about a decade ago, an alternative Customer-Based GHGE Accounting System  (`CAS`) was developed. This newer, more visible approach, has been adopted by progressive  communities, states, and nations, as a complementary way of accounting for emissions. The CAS  methodology is much more in alignment with the cost-causer principle, environmental justice, the United Nations Sustainable Development Goals (“SDG”), promoting consumer choice, and  allowing consumers to understand their greenhouse gas impacts. Furthermore, the CAS  methodology is very transparent and easily understood.”

“Each methodology is an accounting system… The PAS system would determine the greenhouse gas emissions at a power plant per BTU of power generated… The CAS system would determine the embedded greenhouse gas emissions per BTU of power generated.”

CAS is not an outlier philosophy.

World Bank (2016): “While the production-based  emissions of the early industrialized countries has begun to decrease, their consumption based  emissions have continued to grow, with the gap between the two becoming increasingly significant.”

International Monetary Fund (2017): “Most advanced economies have become net  importers of emissions since they tend to emit less in producing the goods and services they export than what their trading partners emit in producing the goods and services they import. In  recent years, efforts have been made to develop a consumption-based accounting of emissions to  incorporate emission transfers via international trade.”

Yale University: 2018 Environmental Performance Index (EPI) Report. “Climate change must be understood as an inescapable international problem.” The problem is that “consumer goods produced in one country are often  exported to another, raising the question of whether responsibility for emissions should rest on the producing or consuming country.”

IPCC Chair (2017): “The role of  lifestyles/behaviour/consumption in relation to climate change mitigation received relatively  little attention in past IPCC reports. Important elements include consumption-based GHG emissions, insights into how social practices and patterns of economic development shape GHG emissions and how interventions can promote climate change mitigation. This would entail an `actor-oriented` approach requiring authors to draw to a greater extent on social science  literature.

“Production-based GHGE accounting evades the cost-causer principle. Embedded emissions  are separated into smaller pieces and attached to numerous global accounts. Several scientific  studies have found that developed countries have effectively reduced their emissions by outsourcing  to less developed nations.”

“The Kyoto targets were completely offset by net emission transfers, also known as leakage. Individual developed countries include net exporters (Australia and Canada) and net  importers (US, Japan, most of the European Union). American investors poured money into China to manufacture goods for the U.S., and China gets blamed for the increased emissions. Global GHG emissions continue to increase. Trade now accounts for more than a quarter of all GHGE, resulting in a growing gap between production emissions and consumption emissions.”

“Rich countries are outsourcing their emissions. Consumers may think that their policies are reducing emissions, but without knowing the embedded emissions in their consumption, they  may be off target. Net emissions transfers, also known as “demand-driven carbon leakage” pose  a serious threat to the globe. Relying only on production-based creates inefficiencies and can  drive up GHGE.”

“To make a cellphone, one must extract raw materials including trace elements, manufacture, and ship the final product. Resource extraction and the manufacturing of the smartphone’s components are high energy-intensive, and they are often polluting processes. The total emissions are the same whether consumption-based or production-based accounting is used.  The difference is in the allocation of responsibility.”

A Fair Compromise to Break the Climate Impasse: A Major Economies Forum Approach to Emissions Reductions Budgeting (2013) by Marco Grasso et al noted, “We know that China is producing much of what the world (and especially the west) is consuming, and since this is not taken into consideration when calculating national GHG emissions, the numbers are distorted. It makes is easy to put much of the fault on China, while  we, the consumers, tend to overlook the fact that our consumption patterns have a large environmental impact as well.”

Gas Company Appeal

The Public Utilities Commission approved the rate case. LOL and KLM appealed. Associate Justice McKenna wrote the 5-0 decision upholding the appeal, filed on June 9, 2020.

Excerpts of Hawaii Supreme Court Decision:

Concerned about LNG’s effects on climate change, as well as climate change’s impact upon native Hawaiians, LOL and KLM moved to intervene in HG’s rate case. The PUC denied them intervenor status but allowed them to participate in the proceedings on a limited basis. Specifically, LOL and KLM were allowed to address only “whether the [PUC] should disallow as unreasonable [HG’s] LNG costs due to the effects of [HG’s] use of imported LNG on the State’s reliance on fossil fuels and greenhouse gas Emissions.”

Relevant to this appeal, HG sought to include the costs of two new LNG projects in its rate base.

In 2007, the legislature committed the state to reduce, by January 1, 2020, “statewide greenhouse gas emissions to levels at or below the best estimations and updates of the inventory of greenhouse gas emissions estimates for 1990.” Act 234.

Act 234 established the Greenhouse Gas Emissions Reduction Task Force “to prepare a work plan and regulatory scheme for implementing the maximum practically and technically feasible and cost-effective reductions in greenhouse gas emissions from sources or categories of sources of greenhouse gases to achieve the statewide greenhouse gas emissions limits by 2020.”

The legislature specifically directed the Task Force to craft “[r]ecommendations to minimize ‘leakage’ or a reduction in emissions of greenhouse gases within the State that is offset by an increase in emissions of greenhouse gases outside the State. . . .”

The Task Force’s work plan, in turn, “strongly insist[ed] the life-cycle impact of energy sources be considered in any adopted energy laws,” because “even though an energy technology may be relatively clean-burning within the boundaries of Hawaii, the process in which it is made elsewhere is also of importance.” The Greenhouse Gas Emissions Reduction Task Force, Work Plan for Greenhouse Gas Emissions Reductions 14 (Dec. 30, 2009).

Thus, since Act 234, part of this state’s GHG emission reduction strategy has included taking into account out-of-state GHG “leakage” resulting from our energy choices.

In this rate proceeding, HG and the PUC have largely disregarded any possible GHG emission leakage from imported LNG. The PUC’s geographic limitation in Order No. 35112 indicates that it did not intend to, and in fact did not, explicitly consider out-of-state LNG-related GHG emissions in discharging its duties under HRS § 269-6(b). The PUC’s action was contrary to law and, therefore, an abuse of discretion.

Next, the PUC’s limited and perfunctory review of GHG emissions in this rate case is evident in the Greenhouse Gas Emissions section of its Decision and Order… Instead of making any independent factual findings concerning the GHG emissions of HG’s LNG-related projects, the PUC simply repeated HG’s representation… There is no GHG emissions information about the LNG HG uses.

Therefore, the PUC could not have fulfilled its “affirmative duty ‘to reduce the State’s reliance on fossil fuels through energy efficiency and increased renewable energy generation,’” as HRS § 269-6(b) requires, because the PUC could not have “‘explicitly consider[ed]’ the effect of the State’s reliance on fossil fuels on the level of ‘greenhouse gas emissions.’”

Further, as Appellants point out, the PUC did not conduct a “quantitative or qualitative analysis” that substantiates its finding that HG’s LNG projects will decrease GHG emissions.

The PUC contends that this case was just a rate case, and that the PUC had already fulfilled the requirements of HRS § 269-6(b) in the earlier dockets approving the LNG projects. The PUC, however, specifically granted the Appellants participant status to address HRS § 269-6(b) with respect to GHG emissions.

In this case, the PUC did not fulfill the statutory requirements of HRS § 269-6(b) because (1) it did not explicitly consider all of the GHG emission impacts of HG’s LNG projects,  having erroneously previously determined that the out-of-state GHG emissions from HG’s imported LNG were beyond the scope of the rate proceeding, and, (2) upon considering the limited evidence submitted in this case, merely restating, without substantiating, HG’s representation that its LNG projects would decrease GHG emissions.

The Appellants allege that the PUC did not fulfill its constitutional obligation to protect KLM’s native Hawaiian customary and traditional rights under article XII, section 7 of the Hawaiʻi Constitution.

Because the PUC improperly curtailed Appellants’ substantive participation, the record is not sufficiently  developed for us to address this issue. On remand, the PUC should consider its constitutional obligations.

Appellants also argue that the PUC failed to fulfill its affirmative obligations as a public trustee over the state’s natural resources under article XI, section 1 of the Hawaiʻi State Constitution

As we reiterated in Mauna Kea II, a state agency must perform its functions in a manner that fulfills the State’s affirmative obligations under the Hawaiʻi constitution. 143 Hawaiʻi at 387, 431 P.3d at 760. We also note, however, that HG and the PUC’s reliance on the ICA’s decision in In re Molokai Pub. Utils., 127 Hawaiʻi 234, 277 P.3d 328 (App. 2012), to argue that a rate case does not trigger a state agency’s public trust obligations where there is no change in use of the public trust resource, is misplaced. That case was effectively overruled by this court’s decision in Ching v. Case, 145 Hawaiʻi 148, 177–78, 449 P.3d 1146, 1175–76 (2019), in which we held that the state has a continuing duty to monitor the use of trust property, even if the use of the property has not changed.

Again, because the PUC improperly curtailed Appellants’ substantive participation, the record is not sufficiently developed for us to address this issue. On remand, the PUC should consider its constitutional obligations.

The New PUC Regime

In the past three years the PUC has scrutinized and questioned more than 50 GHG analyses filed by utilities.