The Hawai`i State Legislature passed SB 2510 CD1. 

The Hawai`i Senate demanded that the bill pass and asserted that it would kill numerous house bills if the house did not agree. The house went along with the senate and passed  bill that authorizes concurrent resolutions to alter state law. Allowing laws to be modified by resolutions is clearly unconstitutional.

Several requirements in SB 2510 have set off alarms. Not everyone opposes the bill for the same reason. But those who testified against the bill and/or think the bill is unworkable and should be vetoed is impressive: HECO, KIUC, Life of the Land, Ulupono Initiative, Blue Planet Foundation, Sierra Club, Tawhiri Wind, Hawaii Solar Energy Association, Tesla, Longroad Energy, Progression Wind, Revolusun, and the Honolulu Star Advertiser.

One provision of SB2510 states:

“Firm renewable generation shall be a minimum of 33.33 per cent of renewable energy generation for each island.  Notwithstanding any law to the contrary, this percentage may be updated by the legislature pursuant to the following:

(A)  By adoption of a concurrent resolution based on data from a study by the Hawaii natural energy institute, as described in section 7 of Act, Session Laws of Hawaii 2022; and

(B)  The office of planning and sustainable development shall submit for introduction to the legislature a concurrent resolution for review of the proposed firm renewable energy generation minimum percentage.”

The Hawai`i State Legislature passes resolutions and bills. Bills are a constitutional animal. Article III of the State Constitution addresses the role of the Legislature in enaction laws.

Section 14.  “No law shall be passed except by bill.”

Section 15.  “No bill shall become law unless it shall pass three readings in each house on separate days.”

Section 16.  “Every bill which shall have passed the legislature shall be certified by the presiding officers and clerks of both houses and shall thereupon be presented to the governor.  If the governor approves it, the governor shall sign it and it shall become law.  If the governor does not approve such bill, the governor may return it, with the governor’s objections to the legislature.”

Common Cause described the Legislative practice of gut and replace. “Gut and replace occurs when late in session a bill is stripped of all original content and replaced with an entirely different topic that has no rational connection to the original bill. The bill becomes unrecognizable and is pushed through the Legislature without required readings.”

Common Cause and the League of Women Voters challenged the gut and replace tactic and the Hawai`i Supreme Court agreed in a ruling issued in November 2021. Gut and replace is unconstitutional.

SB2510 doesn`t rely on gut and replace mechanism. But like gut and replace, using a resolution to take the place of a bill is manipulating the legislative process in an improper and unconstitutional way.

Resolutions are typically use for internal policy as well as to ask agencies to study issues or to conduct audits. The Senate Rules and House Rules for the 2021-2022 legislative term both mention resolutions but neither provides any supporting language on the use of using resolutions in shaping policy of agencies.

The title and contents of a resolution can be swapped out for totally new language at any point in the legislative process. A resolution needs only one hearing in each house and one floor vote. Resolutions cannot be vetoed by the Governor.

The Hawaii Legislative Reference Bureau (LRB) is a nonpartisan legislative service agency, that provides a wide variety of services to legislators, legislative committees, and members of the public. LRB has a webpage on Resolution FAQ’s.

“While resolutions don’t become law, they do express the sentiment of the Legislature and may prove vital in moving your issue forward. Resolutions have a wide range of uses: they can request a study or other course of action; request the formation of a task force or working group; establish an honorary designation for a day or month; or congratulate an individual or organization.”

Using resolutions to pass binding legal requirements is a new form of manipulating democratic principles.

“Firm renewable generation shall be a minimum of 33.33 per cent of renewable energy generation for each island.”

Generation can be measured by how much can be produced (megawatts of capacity) or how much is produced (gross or net megawatt-hours). SB 2510 C1 appears to be relying on the first metric: the capacity measured in MW.

“`Firm renewable energy` means renewable energy that is available and capable of being continually producing energy twenty-four hours per day, three hundred sixty-five days per year, on the demand of the energy system operator at its rated capacity, subject only to routine maintenance and emergency repairs.”

SB 2510 C1

Power Type / County	Oahu	Hawai`i	Maui County
Firm Renewable Generation (MW)	126.5	38	0
Variable Renewable Generation (MW)	1,105.0	164	220
Total Renewable Generation (MW)	1231.5	202	220
Renewable Generation (Firm/Total)	10%	18%	0%

There are four firm renewable energy generators on the HECO grids. On O`ahu there are two biofuel generators: Schofield (50 MW) and the Airport Emergency Power Facility (8 MW), and one waste-to-energy incinerator: H-POWER (68.5 MW). On Hawai`i Island there is the Puna Geothermal Venture (38 MW). In addition, Hamakua Energy uses a mixture of oil/biodiesel (60 MW). Assuming the Governor signs the bill into law, any additional solar on Maui, Hawai`i, Moloka`i, and Lana`i would move the islands away from the legal requirement that a third of renewable energy systems are firm power.