Hawaii Residents Can Defend Their Environmental Rights in Court

(CN) - Hawaii residents can sue to defend their rights to a “clean and healthful” environment under the Hawaii Constitution, a division of Hawaii’s Supreme Court ruled.

Attorneys for Earthjustice argued on behalf of the Sierra Club in the Intermediate Court of Appeals of the Hawai’i Supreme Court that the state constitutional right to a clean and healthful environment gives citizens the right to be heard and to protect their environmental interests in cases before the Public Utilities Commission.

“The Commission can no longer ignore us. We will continue to oppose dirty fossil fuels and push for a just transition to clean, renewable energy in our state,” Sierra Club of Hawaii Director Marti Townsend said in a statement.

The underlying appeal challenged the utility commission’s denial of the Sierra Club’s request to intervene in a case involving a then-proposed agreement by Maui Electric Company to buy power from the former Hawaiian Commercial & Sugar Company’s coal-fired power plant. The commission refused environmentalists’ participation, then approved the power agreement.

Members of the Sierra Club of Hawaii said they wanted to intervene because the plant in Puunene, Hawaii, was burning coal and petroleum along with sugar cane waste to generate power, according to court documents. The organization claimed that the burning of fossil fuels endangered residents’ health and violated the state policy to encourage alternative energy sources.

The sugar plantation plant was burning up to 25 percent coal annually to meet its power production obligations to Maui Electric, according to court documents. The Sierra Club asserted that its members were continually forced to close the windows of their homes and run air filters to protect against harmful pollution.

The club also argued that the plant was permitted to burn coal and petroleum without modern pollution controls. In 2014, Hawaii’s Department of Health assessed a $1.3 million fine against the plant for more than 400 Clean Air Act violations.

Hawaii Commercial & Sugar closed in January 2017 due to the high cost of processing the cane sugar and competition from the higher-volume output of foreign processors. Despite the plant’s closing, the court still found a ruling to be necessary due to the state’s statutory mandate to achieve an energy grid powered by 100 percent renewable energy by 2045.

The renewable energy mandate has made commission proceedings, such as that of Maui’s electric agreement with the sugar plantation, both more complex and more frequent.

Thursday’s ruling resolves long-running inconsistencies among the Public Utilities Commission’s decisions on environmental groups’ requests to take part in commission proceedings, according to a Sierra Club Hawaii statement.

“It is vital that citizens have a seat at the table as Hawai'i advances toward 100% clean energy,” Earthjustice attorney Kylie Wager Cruz said in the statement. “The Court provided much-needed confirmation that the Commission can’t simply rubberstamp utility deals without considering and protecting the public’s constitutionally protected environmental rights.”

Thursday’s 53-page ruling explains that the Sierra Club should have been allowed a contested case hearing when the Public Utilities Commission reauthorized use of the Puunene sugar mill’s power plant.

“We hold that, under the circumstances of this case, the petitioners asserted a protectable property interest in a clean and healthful environment as defined by environmental regulations,” Justice Richard Pollack wrote in the court’s majority opinion.

Three of the court's five justices agreed that the Sierra Club had a due process right to be heard and that state law required the commission to consider the hidden and long-term costs of energy produced at the plant, including the potential for increased air pollution as a result of greenhouse gas emissions, in determining whether the agreement was prudent and in the public interest.

Associate Justices Sabrina McKenna and Michael Wilson joined the majority opinion. Supreme Court Chief Justice Mark Recktenwald and Associate Justice Paula Nakayama dissented, arguing that establishing a property right for a clean environment could have unintended consequences and uncertainty. The dissenting judges also stated that the Sierra Club could have explored other options in their case against the Puunene Plant, such as a separate lawsuit against the PUC.

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