In re Application of Hawai'i Electric Light Company, Inc.
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This case arises from the Public Utilities Commission‘s approval of an amended power purchase agreement (Amended PPA) between Hawai‘i Electric Light Company, Inc. (HELCO) and Hu Honua Bioenergy, LLC. Pursuant to the Amended PPA, Hu Honua would construct and operate a biomass-fueled energy production facility, and HELCO would purchase energy from the facility.
Life of the Land (LOL), an environmental nonprofit organization, sought to intervene as a party in the PUC‘s proceeding in order to address the environmental impacts of the proposed biomass facility. The PUC denied LOL full party status, but granted LOL limited participation in the proceeding. The PUC ultimately approved the Amended PPA without holding a hearing.
LOL directly appealed the PUC‘s order granting it limited participation in the proceeding, as well as the Decision and Order approving the Amended PPA (2017 D&O), to this court. LOL argues that the PUC: (1) failed to explicitly consider greenhouse gas (GHG) emissions in determining whether to approve the Amended PPA, as required by state law; (2) denied LOL due process to protect its interest in a clean and healthful environment by restricting its participation in the proceeding; and (3) abused its discretion and violated due process by denying LOL full party status in the proceeding. In addition to disputing these allegations, the PUC, HELCO, and Hu Honua contest this court‘s jurisdiction over the matter.
As a threshold matter, we hold that this court has jurisdiction to consider LOL‘s appeal. We further hold that the PUC erred by failing to explicitly consider the reduction of GHG emissions in approving the Amended PPA, as required by statute, and that the PUC denied LOL due process with respect to the
Accordingly, we vacate the 2017 D&O and remand this matter to the PUC for further proceedings.
I. BACKGROUND
A. PUC Proceedings
1. 2012 Docket
In 2012, HELCO submitted an application to the PUC seeking approval of a power purchase agreement (Original PPA) with Hu Honua. Pursuant to the Original PPA, Hu Honua agreed to refurbish an existing biomass power plant located on the Hamakua Coast in Pepe‘ekeo, Hawai‘i, to allow it to utilize harvested timber and other “woody biomass” as a fuel source. HELCO agreed to purchase energy from the facility over the Original PPA‘s 20-year term.
LOL filed a Motion to Intervene as a party-intervenor in the PUC proceeding (2012 Docket), pursuant to
More specifically, with regard to the proposed Hu Honua facility, LOL stated it had “several concerns, including the fuel source,
The PUC found that the “concerns raised in [LOL‘s] Motion to Intervene provide[d] insufficient basis to justify full intervention[.]” However, it also found that “LOL‘s concerns regarding the proposed project‘s impact on existing renewable projects on the Big Island, and the supply and pricing analysis between the biomass resources delineated in the [Original] PPA [were] sufficient to justify LOL having limited participant status in [the 2012 Docket], pursuant to
The PUC ultimately approved the Original PPA, but HELCO subsequently terminated the agreement. HELCO and Hu Honua agreed to amend the Original PPA, giving rise to the Amended PPA at issue in the instant case.
2. 2017 Docket
In 2017, HELCO filed an application with the PUC, seeking approval of the Amended PPA. The PUC entered Order No. 34554, opening Docket No. 2017-0122 (2017 Docket) to address HELCO‘s request. The order also granted LOL “conditional participant status” in the proceeding and stated it would reevaluate LOL‘s status and establish the scope of LOL‘s participation following its final determination of the issues governing the 2017 Docket.
LOL filed exhibits in response to Order No. 34554, which included an overview of the “agricultural expertise” of Henry Curtis, LOL‘s Vice President of Consumer Issues. Curtis explained that he had “stayed with friends living in Hamakua, stayed at vacation sites in Hamakua, explored Hamakua, and made several trips to the Hu Honua site, driving around three sides of the site.”2 In support of his agricultural expertise, Curtis also cited to a chapter that he authored in “The Value of Hawai‘i: Knowing the Past, Shaping the Future,” which cites runoff into the ocean as one of the primary adverse environmental impacts associated with the use of biofuels for energy production.
The PUC entered Order No. 34597, establishing a procedural schedule, statement of the issues, and scope of participation for participants. The PUC permitted LOL to participate in the proceeding, but limited the scope of its participation to the same two issues that it participated on in the 2012 Docket:
2.a.i. Whether the energy price components in the Amended and Restated PPA properly reflect the cost of biomass fuel supply.
2.b. Whether HELCO‘s purchase power arrangements under the Amended and Restated PPA are prudent and in the public interest.
Specifically, the PUC found that:
Because the question of whether HELCO‘s purchase power arrangements under the Amended and Restated PPA are prudent and in the public interest continues to be an issue in this proceeding, as it was in Docket No. 2012-0212, the commission finds it appropriate to maintain LOL, Tawhiri, and HEP‘s participant status on this issue (Issue 2.b., above).3 Further, while
not explicitly stated, the question of whether the energy price components properly reflect the cost of biomass fuel supply is a consideration when determining whether the purchased power costs to be paid by HELCO pursuant to the Amended and Restated PPA are reasonable (Issue 2.a., above). Accordingly, the commission finds it appropriate to maintain LOL‘s participant status on the specific sub-issue of whether the energy price components properly reflect the cost of biomass fuel supply (Issue 2.a.i., above).
(Emphasis added).
a. Motion to Upgrade Status
LOL filed a Motion to Upgrade Status, requesting that the PUC allow it to intervene in the 2017 Docket as a party.4 In support of its Motion to Upgrade Status, LOL stressed the fact that the PUC had already “grant[ed] LOL participant status based on [its] interests in the pending matter.” LOL also cited previous PUC proceedings in which it was admitted as a party, and stated that: (1) its Board of Directors “approved continuing to intervene in energy dockets as a means of promoting sustainable policies“; (2) LOL‘s members “are very deeply concerned about climate change, biodiversity, and the spread of invasive species“; (3) the only way to protect LOL‘s interest is by accessing “classified documents dealing with externalities“; (4) there are no other means available to protect LOL‘s interests; (5) the Consumer Advocate does not represent LOL‘s interests because it lacks the expertise to understand externalities;5 (6) the agricultural expertise of LOL‘s vice president will assist in developing an evidentiary record; and (7) while the Consumer Advocate represents the interests of the general public, “LOL is concerned with a wider lens that encompasses externalities including social justice, environmental justice, climate justice, and [GHG] impacts.” In addition, LOL specifically expressed concern regarding the externalities associated with “acquiring bioenergy crops” from a specific area of the Big Island that already serves as a source for another biofuel facility.
The PUC issued Order No. 34651, denying LOL‘s motion. The PUC cited
As was the case in [the 2012 Docket], upon review of the record, the commission continues to find that the concerns raised in LOL‘s Motion, which are identical to or mirror the concerns raised by LOL in its Motion to Intervene in [the 2012 Docket], provide insufficient basis to justify full intervention in this proceeding. The commission finds that LOL has failed to demonstrate any additional interest or expertise sufficient to justify a change in its limited participant status granted on a conditional basis in Order No. 34554, and permanently established pursuant to Order No. 34597.
b. Information Requests
LOL filed several Information Requests (IRs), seeking information from HELCO, Hu Honua, and the Consumer Advocate regarding GHG emissions and other potential adverse environmental impacts of the Hu Honua facility. In its response to LOL‘s IRs, HELCO acknowledged that GHGs would be emitted by equipment used to raze and transport trees, but stated that it had not quantified the amount of emissions. HELCO asserted that although carbon would be released into the atmosphere upon the combustion of trees in the facility, it would be recaptured upon the regrowth of the trees. In response to at least one of the IRs that LOL submitted to HELCO, HELCO objected and refused to respond, arguing that the information sought was “not relevant to and [was] outside the scope of LOL‘s authorized scope of limited participation[.]”
One of the IRs that LOL submitted to Hu Honua posed several questions regarding the quantity of wastewater that would be produced by the facility, the means by which it would be produced and managed, and the steps that would be taken to monitor and prevent ocean contamination. Hu Honua objected to this IR, as well as those focused on GHG emissions and climate change, stating that they were “not relevant or material to Issue Nos. 2.a.i or 2.b, which [were] the only issues for which the Commission authorized LOL‘s participation.”
The Consumer Advocate responded to LOL that it had not completed an analysis of the impact the project would have on GHG emissions, and that any analysis should be comprehensive, including GHGs resulting from harvesting and transporting the feedstock. The Consumer Advocate further stated that it had not evaluated the need for a consultant to review GHGs and climate change in the instant proceeding.
c. Statements of Position
In its Statement of Position, LOL argued that Hu Honua‘s proposed facility was not in the public interest. LOL further argued that Hu Honua‘s proposal failed to fully address climate change and the environmental impacts of the proposed operations. LOL stated:
Hu Honua plans to chop down existing trees for seven years, and then to rely on a rotational system of growing new trees and then chopping them down. Omitting any
discussion of the fossil fuels used in the mechanization of growing, chopping, chipping, and transport, Hu Honua alleges that this operation is carbon neutral.
LOL also argued that the pricing of Hu Honua‘s proposal was not in the public interest when compared to lower-priced solar-based electricity proposals previously approved by the PUC.
In its Reply Statement of Position, Hu Honua argued that its facility “will make a significant contribution to the State‘s [Renewable Portfolio Standards (RPS),]” noting that “HELCO estimates that Hu Honua will increase RPS levels by 11% over the life of the PPA, and avoid the emission of hundreds of thousands of tons of CO2.” Hu Honua asserted that “the estimated emissions due to transportation of fuel to the plant pale in comparison to the emissions reductions that will result from the displacement of fossil fuel[.]” Hu Honua further stated that “biomass plants, like wind and solar plants, are renewable and carbon neutral to a reasonable approximation, and are therefore deemed fully renewable by applicable state law.”
d. 2017 Decision and Order
Without holding a hearing, the PUC entered the 2017 D&O approving the Amended PPA. The PUC noted that comments in support of the Project focused on issues including the fulfillment of the RPS targets and energy resource self-reliance, while comments in opposition focused on issues including potential adverse environmental impacts, an expected rise in GHG emissions, and general objections to biomass as a fuel resource.
The PUC then summarized each party‘s position, citing HELCO‘s claims that approval of the Amended PPA would be reasonable due to, inter alia, the project‘s contribution to the State‘s RPS goals, the fact that the contract price for the Amended PPA is de-linked from fossil fuel pricing, and the assertion that “renewable energy provided by the Project could potentially save approximately 15,700 barrels of fuel per year, which over the term of the [Amended] PPA amounts to approximately 329,000 barrels of fuel oil saved.” The PUC also noted the following:
HELCO asserted that the totality of circumstances should be considered when reviewing whether the purchased power costs are reasonable, . . . including governmental policies and objectives, contributions towards RPS, reducing dependency on fossil fuels, decreased price volatility, de-linking energy costs from fossil fuel pricing, realization of tax incentives, and community benefits.
. . . .
LOL asserted that “[t]he cost of biofuel includes both financial and non-financial components, which Hu Honua has failed to adequately address.” LOL asserted that the “non-financial components” include impacts on climate change and endangered species that were not explicitly quantified or monetized in HELCO‘s benefit/cost ratio.
. . . .
LOL is not in favor of commission approval of the [Amended] PPA, but focused its rationale on concerns outside of the scope of its limited participation, namely climate change and comparative pricing with other forms of energy.
(Emphases added).
It appears the PUC adopted HELCO‘s analysis of the biomass facility‘s economic and customer bill impact under the Amended PPA, stating, “[p]er HELCO, . . . the Project provides significant renewable energy-related benefits, primarily through its firm capacity and contribution to the State‘s RPS goals. For the island of Hawaii, with the Project, the RPS goal levels increase by approximately 11% over the 30-year life of the Project.” The PUC also made the following findings and conclusions:
[T]he commission finds that the Project will . . . add to the diversity of HELCO‘s existing portfolio of renewable energy resources.
. . . .
Consistent with [
Hawai‘i Revised Statutes (HRS)] § 269-27.2(c)[(Supp. 2016)] , the proposed pricing structure is delinked from fossil fuel pricing.. . . .
[I]t appears that the addition of the Project may primarily displace fossil fuel generation resources. Accordingly, the commission anticipates that, based on the representations made in HELCO‘s [Power Supply Improvement Plan], this Project will accelerate the retirement of fossil fuel plants[.]
(Emphases added).
The PUC addressed, inter alia, the following two issues: (2.a.i) whether the energy price components in the Amended PPA properly reflect the cost of biomass fuel supply; and (2.b) whether HELCO‘s purchase power arrangements under the Amended PPA are prudent and in the public interest. The PUC found the purchased power costs to be reasonable and that the arrangements under the Amended PPA were prudent and in the public interest. Accordingly, the PUC approved the Amended PPA, concluding that:
HELCO has met its burden of proof in support of its request for the commission to approve the [Amended] PPA. The purchased power costs and arrangements set forth in the [Amended] PPA appear reasonable, prudent, in the public interest, and consistent with HRS chapter 269 in general, and
HRS § 269-27.2(c) , in particular. While the commission, in this instance, finds the pricing to be reasonable, the commission makes clear that its decision to approve the [Amended] PPA is not based solely on pricing, but includes other factors such as the State‘s need to limit its dependence on fossil fuels and mitigate against volatility in oil pricing.
(Emphases added).
B. Direct Appeal
LOL directly appealed the PUC‘s order denying LOL‘s Motion to Upgrade Status and the 2017 D&O to this court. See
LOL presents three points of error:8 (1) the PUC was required, under
II. STANDARDS OF REVIEW
A. Jurisdiction
“The existence of jurisdiction is a question of law that [the appellate court reviews] de novo under the right/wrong standard.” Captain Andy‘s Sailing, Inc., v. Dep‘t of Land & Nat. Res., 113 Hawai‘i 184, 192, 150 P.3d 833, 841 (2006) (internal quotation marks and citation omitted).
B. Direct Appeal
Because this is a direct appeal from a decision of the PUC, the standard of review, as set forth in
Upon review of the record, the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
Conclusions of law are reviewed de novo, pursuant to subsections (1), (2) and (4);
A court reviewing the decision of an agency should ensure that the “agency . . . make its findings reasonably clear. The parties and the court should not be left to guess . . . the precise finding of the agency.” In re Water Use Permit Applications, 94 Hawai‘i 97, 157, 9 P.3d 409, 469 (2000) (“Waiahole I“) (quoting In re Kauai Elec. Div. of Citizens Utilities Co., 60 Haw. 166, 183, 590 P.2d 524, 537 (1978)). An agency‘s findings should be “sufficient to allow the reviewing court to track the steps by which the agency reached its decision.” Kilauea Neighborhood Ass‘n v. Land Use Comm‘n, 7 Haw. App. 227, 230, 751 P.2d 1031, 1034 (1988)[; see] also In re Wai‘ola O Moloka‘i, Inc., 103 Hawai‘i 401, 432, 83 P.3d 664, 695 (2004) (explaining that any presumption of validity, given to an agency‘s decision, “presupposes that the agency has grounded its decision in reasonably clear” findings of fact and conclusions of law).
C. Constitutional Law
“We review questions of constitutional law de novo, under the right/wrong standard.” Jou v. Dai-Tokyo Royal State Ins. Co., 116 Hawai‘i 159, 164-65, 172 P.3d 471, 476-77 (2007) (quoting Onaka v. Onaka, 112 Hawai‘i 374, 378, 146 P.3d 89, 93 (2006)) (internal quotation marks omitted).
III. DISCUSSION
A. Jurisdiction
This court must determine, as a threshold matter, whether it has jurisdiction over LOL‘s appeal. Pub. Access Shoreline Haw. by Rothstein v. Haw. Cty. Planning Comm‘n by Fujimoto, 79 Hawai‘i 425, 431, 903 P.2d 1246, 1252 (1995) (quoting Pele Def. Fund v. Puna Geothermal Venture, 77 Hawai‘i 64, 67, 881 P.2d 1210, 1213 (1994)). Hu Honua and HELCO argue that this court lacks jurisdiction because LOL‘s appeal of the PUC‘s 2017 D&O constitutes an improper collateral attack on the PUC‘s 2012 D&O. Additionally, Hu Honua, HELCO, and the PUC argue that this court lacks jurisdiction because LOL‘s appeal does not arise from a contested case and LOL failed to comply with the applicable agency rules by not requesting a contested case hearing.
As set forth below, LOL‘s appeal is not a collateral attack on the PUC‘s 2012 D&O. LOL has appealed the PUC‘s 2017 D&O to directly challenge its validity, rather than to indirectly impeach the validity of the PUC‘s 2012 D&O. Furthermore, the requirements for judicial review under
1. Collateral Attack
“A collateral attack[, as opposed to a direct attack,] is an attempt to impeach a
The party asserting that an action constitutes an impermissible collateral attack on a judgment must establish that: (1) a party in the present action seeks to avoid, defeat, evade, or deny the force and effect of the prior final judgment, order, or decree in some manner other than a direct post-judgment motion, writ, or appeal; (2) the present action has an independent purpose and contemplates some other relief or result than the prior adjudication; (3) there was a final judgment on the merits in the prior adjudication; and (4) the party against whom the collateral attack doctrine is raised was a party or is in privity with a party in the prior action.
Smallwood, 118 Hawai‘i at 150, 185 P.3d at 898.
As set forth below, LOL‘s appeal is a direct attack of the PUC‘s 2017 D&O, not a collateral attack on the PUC‘s 2012 D&O.
The first Smallwood element requires a showing that “a party in the present action seeks to avoid, defeat, evade, or deny the force and effect of the prior final judgment, order, or decree in some manner other than a direct post-judgment motion, writ, or appeal.” 118 Hawaiʻi at 150, 185 P.3d at 898 (emphases added). “If an appeal is taken from a judgment, . . . the attack is obviously direct, the sole object of the proceeding being to deny and disprove the apparent validity of the judgment.” Kapiolani Estate, 14 Haw. at 661. Rather than attacking the validity of the PUC‘s 2012 D&O, LOL‘s appeal was instituted for the express purpose of denying the force and effect the PUC‘s 2017 D&O. Thus, the first Smallwood element is not satisfied and LOL‘s appeal cannot be construed as a collateral attack. See Kapiolani Estate, 14 Haw. at 661 (“A collateral attack is an attempt to impeach a judgment or decree in a proceeding not instituted for the express purpose of annulling, correcting or modifying such judgment or decree.“) (emphasis added).
Hu Honua and HELCO argue that, even if LOL‘s challenge appears to be a direct appeal of the PUC‘s 2017 D&O, it functions as a collateral attack on the PUC‘s 2012 D&O. Hu Honua and HELCO contend that the primary purpose of LOL‘s appeal is to force the PUC to consider the effect of the State‘s reliance on fossil fuels on GHG emissions and climate change. However, they argue, consideration of GHGs was not within the scope of the PUC‘s final statement of issues in the 2017 Docket. According to Hu Honua and HELCO, the 2017 Docket only involved increasing the term of the Original PPA and revisions to the contract price and milestone events, which do not directly relate to the effect of the State‘s reliance on fossil fuels on GHG emissions or climate change. Hu Honua and HELCO therefore contend that, to the extent the PUC was required to consider the effect of the State‘s reliance on fossil fuels on GHG emissions and climate change, “it did so only in the 2012 Docket.” Because LOL failed to directly and timely challenge the 2012 D&O, Hu Honua and HELCO argue that LOL‘s appeal is an improper and untimely attempt to raise the PUC‘s failure to address GHGs in the 2012 D&O.
As discussed further infra, a majority of this court recently determined that ”
Accordingly, this court‘s appellate jurisdiction is not precluded by the collateral attack doctrine.
2. Contested Case
PUC decisions are appealable to this court pursuant to
Any other law to the contrary notwithstanding, including chapter 91, any contested case under this chapter shall be appealed from a final decision and order or a preliminary ruling that is of the nature defined by section 91-14(a) upon the record directly to the supreme court for final decision. Only a person aggrieved in a contested case proceeding provided for in this chapter may appeal from the final decision and order or preliminary ruling.
Judicial review over an agency appeal is authorized by
[F]irst, the proceeding that resulted in the unfavorable agency action must have been a contested case hearing . . . ; second, the agency‘s action must represent a final decision or order, or a preliminary ruling such that deferral of review would deprive the claimant of adequate relief; third, the claimant must have followed the applicable agency rules and, therefore, have been involved in the contested case; and finally, the claimant‘s legal interests must have been injured — i.e., the claimant must have standing to appeal.
MECO, 141 Hawaiʻi at 258, 408 P.3d at 10 (quoting Kilakila ʻO Haleakala v. Bd. of Land & Nat. Res., 131 Hawaiʻi 193, 200, 317 P.3d 27, 34 (2013)).
Accordingly, there are three jurisdictional
requirements for judicial review over an agency appeal: (1) a contested case hearing, (2) finality, and (3) compliance with agency rules. Id. Hu Honua, HELCO, and the PUC argue that this court lacks jurisdiction over LOL‘s appeal because the appeal does not arise from a contested case and LOL failed to comply with the applicable agency rules by not requesting a contested case hearing.10
a. The Proceeding Was a Contested Case Hearing
“A contested case hearing is one that is (1) required by law and (2) determines the rights, duties, and privileges of specific parties.” MECO, 141 Hawaiʻi at 258, 408 P.3d at 10 (internal quotation marks omitted) (citing Kilakila, 131 Hawaiʻi at 200, 317 P.3d at 34). As set forth below, the PUC‘s 2017 Docket was a contested case hearing because a hearing was required by law that would have determined the rights, duties, and privileges of HELCO.
i. “Required by Law”
“In order for an administrative agency hearing to be required by law, it may be required by (1) agency rule, (2) statute, or (3) constitutional due process.” Id. (internal quotation marks omitted) (citing Kilakila, 131 Hawaiʻi at 200, 317 P.3d at 34). LOL contends that a contested case hearing was required under
HRS § 269-16(b)
The PUC approved the Amended PPA pursuant to, in part,
[I]n the Underlying [2012] Decision and Order regarding the Original PPA, the commission found it “reasonable to authorize recovery of the purchased energy charges through [HELCO‘s] ECAC, and to recover the non-energy purchased power costs (including the related revenue taxes) through [HELCO‘s] PPAC, to the extent that such costs are not included in base rates.” Because the energy and capacity payments in the [Amended PPA], as in the Original PPA, continue to not be included in another cost recovery mechanism, and given the above findings concerning pricing under the [Amended PPA], the commission authorizes the same recovery under the [Amended PPA].
In MECO, we considered whether a hearing was required under
[T]he Commission authorized Maui Electric to recover charges for purchased energy under the Agreement through Maui Electric‘s existing energy cost adjustment clause. There is nothing in the record indicating that Maui Electric‘s energy cost adjustment clause was not previously approved by the Commission or that the Commission‘s decision revised the existing adjustment clause. Additionally, the record does not suggest that the use of the fuel adjustment clause in this case would cover anything other than increases or decreases in the unit cost of purchased energy determined by the last rate case proceeding for the utility. See
HAR § 6–60–6(3) .
Similarly here, the PUC authorized HELCO to recover charges for purchased power through its existing ECAC and PPAC. The record indicates that these adjustment clauses were previously approved and were not revised by the PUC‘s 2017 D&O. Furthermore, the record does not suggest that the adjustment clauses would cover anything other than changes in the unit cost of purchased power determined by the last rate case proceeding.
Accordingly, because the rate adjustments implicated by the Amended PPA were established pursuant to automatic adjustment clauses previously approved by the PUC, the PUC was not required to hold a contested case hearing under
(B) HRS § 269-27.2(d)
Pursuant to
In MECO, we similarly considered whether a hearing was required under
Sierra Club has not argued that the [PUC]‘s decision authorized Maui Electric to impose an interim increase in rates for the purpose of recovering payments for firm capacity, nor has Sierra Club argued that Maui Electric ever sought permission to do so. Indeed, the record indicates that one of the features of the Agreement was to eliminate the capacity payments that Maui Electric was paying to HC & S under the existing agreement. Accordingly, the requirement of a hearing provided for in
HRS § 269-27[.2](d) is not applicable to the Application in this case.
As in MECO, LOL does not argue that the PUC authorized an interim increase in HELCO‘s base rates when it approved the Amended PPA, or that HELCO sought permission to impose such an increase. As such, the PUC was not required to hold a contested case hearing under
(C) Constitutional Due Process
LOL argues that a contested case hearing was required by constitutional due process prior to the PUC‘s approval of the Amended PPA. As set forth below, we agree.
Accordingly, to determine whether LOL was entitled to a contested case hearing pursuant to constitutional due process, we must first determine whether LOL possesses “an interest which qualifies as ʻpropertyʻ within the meaning of the constitution.” Id. If LOL does possess such a property interest, we must then consider whether a contested case hearing was required to protect that interest. Id.
(1) Constitutionally Cognizable Property Interest
“[A] protected property interest exists in a benefit — tangible or otherwise — to which a party has a legitimate claim of entitlement.” MECO, 141 Hawaiʻi at 260, 408 P.3d at 12 (internal quotation marks omitted) (citing Sandy Beach Def. Fund, 70 Haw. at 377, 773 P.2d at 260). This court has explained that:
The legitimate claims of entitlement that constitute property interests are not created by the due process clause itself. Instead, “they are created and their dimensions are defined by existing rules or understanding that stem from an independent source such as state law — rules or understanding that secure certain benefits and that support claims of entitlement to those benefits.”
Id. (quoting In re ʻĪao Ground Water Mgmt. Area High-Level Source Water Use Permit Applications, 128 Hawaiʻi 228, 241, 287 P.3d 129, 142 (2012)).
LOL argues that it was entitled to due process to protect its constitutional right to a clean and healthful environment provided by
Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law.
In MECO, this court similarly considered whether the PUC violated Sierra Club‘s due process rights by approving a power purchase agreement between a utility company and a producer of electricity without holding a contested case hearing to consider the environmental impacts of approving the agreement. Id. at 260-65, 408 P.3d at 12-17. This court recognized that Sierra Club‘s interest in its right to a clean and healthful environment, as defined by laws relating to environmental quality, is a property interest protected by due process, as it is a substantive right guaranteed by the Hawaiʻi Constitution. Id. at 260-61, 408 P.3d at 12-13.
This court then determined that ”
Like the appellant in MECO, LOL seeks to protect its property interest in a clean and healthful environment, as defined by
Life of the Land is a non-profit Hawaii-based organization. Our members are very deeply concerned about climate change, biodiversity, and the spread of invasive species. Life of the Land believes that the efforts to protect our archipelago from the
ravages of climate change, and the introduction of alien species has not been adequately protected and funded by legislative actions.
LOL asserts that “its members are located in Hawaiʻi 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 decisionmaking on the [Amended PPA].” Consequently, pursuant to
(2) A Contested Case Hearing was Required
Having determined that LOL has demonstrated a protected property interest in a clean and healthful environment as defined by
First, the private interest to be affected is LOL‘s right to a clean and healthful environment, which “includes the right that explicit consideration be given to reduction of [GHG] emissions in Commission decision-making, as provided for in
Further, the PUC‘s 2017 D&O concluded that the Amended PPA was “consistent with HRS chapter 269” and was approved based in part on “the State‘s need to limit its dependence on fossil fuels and mitigate against volatility in oil pricing.” The PUC‘s decision thus implicated LOL‘s constitutional right to a clean and healthful environment, as defined by
Second, the risk of erroneous deprivation is high in this case, absent the protections provided by a contested case hearing. Consistent with public comments in opposition to the project, LOL posits that the PUC‘s approval of the Amended PPA could have adverse environmental impacts. Yet, the restricted scope of the 2017 Docket prevented LOL from addressing these potential impacts. See MECO, 141 Hawaiʻi at 266, 408 P.3d at 18 (risk of erroneous deprivation of Sierra Club‘s interest was high due to potential impact on air quality and absence of opportunities to be heard concerning electricity producer‘s performance under the agreement).
Finally, regarding the governmental interest, the burden of affording LOL a contested case hearing is slight because the PUC is already statutorily required to consider the long-term effects of its decisions. See id. (affording Sierra Club a hearing would not
Accordingly, and consistent with this court‘s conclusion in MECO, a hearing conducted by the PUC was required by constitutional due process to protect LOL‘s right to a clean and healthful environment, as defined by
ii. “Rights, Duties, and Privileges”
A contested case hearing is one that is (1) required by law and (2) determines the rights, duties, and privileges of specific parties. MECO, 141 Hawaiʻi at 258, 408 P.3d at 10 (citing Kilakila, 131 Hawaiʻi at 200, 317 P.3d at 34) (internal quotation marks omitted). Having determined that a contested case hearing was required by constitutional due process, the question becomes whether the 2017 Docket, in which the PUC approved the Amended PPA, constituted a contested case hearing. We conclude that the 2017 Docket was a contested case hearing because the hearing required by law would have determined HELCO‘s rights, duties, and privileges.
This court has explained that:
HRS § 91–1 [Supp. 2018] does not contain the requirement that the hearing be a “trial-type evidentiary hearing” or that the hearing exhibit a particular level of “adversarial” quality. Rather, . . . there are only two requirements for a hearing to be regarded as a contested case hearing: (1) that the hearing be required by law and (2) that the hearing determine the rights, duties, or privileges of specific parties.
In Kilakila, the Board of Land and Natural Resources (BLNR) approved an application submitted by the University of Hawaiʻi (UH) to permit construction of astronomy facilities near the summit of Haleakalā on Maui. 131 Hawaiʻi 193, 317 P.3d 27. The circuit court dismissed an appeal of the BLNR‘s decision for lack of jurisdiction under
We first determined that UH‘s application “necessitated a hearing by law - i.e., by the administrative rules governing [Department of Land and Natural Resources] and BLNR.” Id. at 202, 317 P.3d at 36. We then stated the following regarding the “rights, duties, and privileges” requirement of a contested case hearing:
In this case, no formal contested case hearing was actually held before the BLNR voted to grant the permit in this case, so the question becomes whether a formal hearing would have determined — or whether the proceedings that did take place determined — the “rights, duties, and privileges of specific parties.” The inquiry here is “directed at the party whose application was under consideration.” Thus, we focus on the rights, duties, and privileges of UH.
. . . . UH‘s proposed project involves construction of a substantial complex of astronomy facilities on conservation district land. . . . UH could not legally commence that construction without first submitting an application for a permit and having that application reviewed and approved by BLNR. Approval, including any conditions attached thereto, or denial of the application clearly implicates whether UH would or would not be able to engage in the requested use of building astronomy facilities at the telescope project site. Thus, a formal contested case hearing approving o[r] denying UH‘s application would have determined UH‘s rights, duties, or privileges with regard to the project. Even in the absence of a formal contested case hearing, we point out that the proceedings that otherwise took place, including the vote to grant the permit, in fact did determine UH‘s rights, duties, and privileges.
Id. (emphases added) (citations omitted).
Because approval of UH‘s permit was required before it could construct astronomy
Similar to the BLNR proceedings at issue in Kilakila, no formal contested case hearing was held before the PUC approved the Amended PPA in the 2017 D&O. We must therefore address “whether a formal hearing would have determined - or whether the proceedings that did take place determined - the ʻrights, duties, and privilegesʻ” of HELCO. Kilakila, 131 Hawaiʻi at 202, 317 P.3d at 36 (noting that the inquiry is “directed at the party whose application was under consideration“) (citation and quotation marks omitted).
Pursuant to
b. LOL Followed Agency Rules and Was Involved in the Contested Case
Judicial review over an agency appeal under
i. A Request for a Contested Case Hearing Was Not Required Pursuant to Administrative Rule
Hu Honua argues that LOL was required to request a contested case hearing pursuant to
practice and procedure before the PUC imposes such a requirement. Furthermore, it is undisputed that LOL was involved in the PUC‘s proceeding as a participant. Accordingly, judicial review over LOL‘s appeal is not precluded on this basis.
In contrast, the 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.
ii. A Request for a Contested Case Hearing Was Not Required by Hawai‘i Case Law
The PUC argues that “[t]his court‘s case law on contested case hearings clearly indicates that a request for a contested case hearing is a necessary prerequisite to judicial review of the kind LOL seeks.” The PUC cites MECO, 141 Hawai‘i at 255, 408 P.3d at 7, Mauna Kea Anaina Hou v. Bd. of Land & Nat. Res., 136 Hawai‘i 376, 380, 363 P.3d 224, 228 (2015), Kilakila, 131 Hawai‘i at 195, 204, 317 P.3d at 29, 38, Kaleikini v. Thielen, 124 Hawai‘i 1, 4, 237 P.3d 1067, 1070 (2010), and Pele Defense Fund, 77 Hawai‘i at 66, 881 P.2d at 1212, for the proposition that “at the very least, a party must have requested a contested case hearing before it can object to the denial of such a hearing.” To the contrary, this court‘s case law does not require a party to request a hearing to gain access to the courts, where the relevant agency has not promulgated a rule requiring such a request and the party has participated in a contested case proceeding.
A formal request for a contested case hearing is not a prerequisite for judicial review over an appeal under the cases cited by the PUC. In MECO, this court noted that, although the Sierra Club was not allowed to participate in the PUC‘s proceeding, it formally requested a contested case hearing. MECO, 141 Hawai‘i at 255-57, 408 P.3d at 7-8. This court did not, however, hold that a
Pele Defense Fund, which involved an appeal of a Department of Health (DOH) decision, is similarly distinguishable because DOH rules provide that in order to obtain judicial review, an interested person seeking a contested case hearing must submit a complaint or application requesting such a hearing.18 77 Hawai‘i at 69, 881 P.2d at 1215 (“Appellees submitted ‘Application[s] for Contested Case[s]’ on forms provided by the DOH and in full compliance with the agency‘s rules.“). Accordingly, the cases cited by the PUC do not establish that LOL was required to request a contested case hearing as a prerequisite to judicial review.
B. Standing
In the context of administrative appeals brought pursuant to
1. “Person Aggrieved”
To be a person aggrieved, “one must be specially, personally, and adversely affected” by the final decision and order at issue. Life of the Land, Inc. v. Land Use Comm‘n, 61 Haw. 3, 7, 594 P.2d 1079, 1082 (1979) (quoting East Diamond Head Ass‘n v. Zoning Board of Appeals, 52 Haw. 518, 523 n.5, 479 P.2d 796, 799 n.5 (1971)). An unfavorable final decision and order is not enough to satisfy this prong of the analysis - “[t]here must be a special injury or damage to one‘s personal or property rights[,] as distinguished from the role of being only a champion of causes.” Id.
We have previously recognized the right to a clean and healthful environment, as defined by
There is sufficient evidence in the record to demonstrate that the PUC‘s approval of the Amended PPA specially, personally, and adversely affected LOL‘s members. As set forth above, LOL is a Hawai‘i-based nonprofit organization comprised of members who live, work, and recreate in Hawai‘i. Such activity includes visiting and exploring the Big Island‘s Hamakua Coast, where the Hu Honua facility is located. LOL asserts that the Hu Honua facility‘s use of biofuels for energy production may cause adverse environmental impacts on the Big Island. In addition to submitting several IRs regarding the GHG emissions associated with the Amended PPA, LOL submitted an IR to Hu Honua regarding the potential for ocean contamination caused by the improper disposal of wastewater at the facility. It also expressed concern regarding the environmental impacts associated with “acquiring bioenergy crops” from an area of the Big Island that already serves as a source for
Thus, LOL has demonstrated an injury to its members, including their right to a clean and healthful environment as defined by
2. Participation
Although an aggrieved person must have participated in a contested case in order to invoke judicial intervention, we have not “conditioned standing to appeal from an administrative decision upon formal intervention in the agency proceeding.” Mahuiki, 65 Haw. at 515, 654 P.2d at 880 (quoting Jordan, 62 Haw. at 449, 616 P.2d at 1371). Where “the appellants have been aggrieved by the action of the PUC, and where they were involved as participants during the [contested case,] the appellants may challenge the order of the PUC in this court.” Life of the Land, Inc. v. Land Use Comm‘n, 61 Haw. at 9, 594 P.2d at 1083 (internal quotation marks and ellipsis omitted) (quoting In Re Application of Hawaiian Electric Co., 56 Haw. 260, 265, 535 P.2d 1102, 1106 (1975)). Because LOL was involved in the 2017 Docket as a participant, it has met the second prong of the analysis. LOL therefore has standing under
C. Merits of LOL‘s Appeal
Pursuant to
The findings and conclusions in the PUC‘s 2017 D&O do not show that the PUC expressly considered the reduction of GHG emissions in reaching its decision. The PUC also denied LOL due process by preventing LOL from addressing the impacts of approving the Amended PPA on LOL‘s right to a
1. The PUC Failed to Satisfy its Statutory Obligations Under HRS § 269-6(b)
(Emphases added).The public utilities commission shall consider the need to reduce the State‘s reliance on fossil fuels through energy efficiency and increased renewable energy generation in exercising its authority and duties under this chapter. In making determinations of the reasonableness of the costs of utility system capital improvements and operations, the commission shall explicitly consider, quantitatively or qualitatively, the effect of the State‘s reliance on fossil fuels on price volatility, export of funds for fuel imports, fuel supply reliability risk, and [GHG] emissions. The commission may determine that short-term costs or direct costs that are higher than alternatives relying more heavily on fossil fuels are reasonable, considering the impacts resulting from the use of fossil fuels.
In MECO, this court observed that “[i]n 2011, the legislature amended
In determining whether the PUC satisfied this duty pursuant to
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
In its findings and conclusions, the PUC found that Hu Honua‘s biomass facility may displace fossil fuel generation resources and accelerate the retirement of fossil fuel plants, and noted that its decision to approve the Amended PPA was based on “factors such as the State‘s need to limit its dependence on fossil fuels and mitigate against volatility in oil pricing.” These findings and conclusions do not constitute “express consideration” of the reduction of GHG emissions, as provided for under
In MECO, Maui Electric requested that the PUC determine whether its proposed PPA was prudent and in the public interest, and consider the reasonableness of the associated energy charges. Id. at 265-66, 408 P.3d at 17-18. This court explained that when reviewing the PPA, the PUC was required under
Similarly, in the instant case, HELCO requested that the PUC determine whether the energy charges under the Amended PPA were reasonable and if its arrangement with Hu Honua was prudent and in the public interest. In its review of the Amended PPA, the PUC found that the “purchased power costs and arrangements set forth in the [Amended] PPA appear reasonable, prudent, in the public interest, and consistent with
Accordingly, the 2017 D&O was not supported by findings regarding GHG emissions of the Hu Honua facility “sufficient to allow the reviewing court to track the steps by which the [PUC] reached its decision.” Kauai Springs, Inc., 133 Hawai‘i at 164, 324 P.3d at 974. Without such explicit findings, this court cannot determine whether the PUC adequately considered GHG emissions as required by
“A remand pursuant to
Upon review of the record, the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are: (1) In violation of constitutional or statutory provisions;
. . . .
(6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
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, pursuant to
Here, remand to the PUC for further proceedings is appropriate. On remand, the PUC shall give explicit consideration to the reduction of GHG emissions in determining whether to approve the Amended PPA, and make the findings necessary for this court to determine whether the PUC satisfied its obligations under
2. The PUC‘s Failure to Provide LOL an Opportunity to Be Meaningfully Heard in the 2017 Docket Denied LOL Due Process
“The basic elements of procedural due process of law require notice and an opportunity to be heard at a meaningful time and in a meaningful manner before governmental deprivation of a significant property interest.” Sandy Beach Def. Fund, 70 Haw. at 378, 773 P.2d at 261 (citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). As discussed supra, this court has recognized that the “right to a clean and healthful environment, as defined by laws relating to environmental quality,” is a property interest protected by due process because it is a substantive right guaranteed by
As explained above, procedural due process necessitated a contested case hearing because the 2017 D&O, which approved the Amended PPA, adversely affected LOL‘s constitutionally protected right to a clean and healthful environment, as defined by
LOL was not afforded a sufficient opportunity to address the Amended PPA‘s impact on its constitutional right to a clean and healthful environment, as defined by
However, HELCO refused to respond to LOL‘s IRs regarding environmental impacts of the project and production of an environmental site assessment because those topics were outside the scope of LOL‘s participation. Hu Honua similarly objected to LOL‘s IRs regarding loss of stored carbon from tree harvesting, environmental impacts of the project, and production of an environmental site assessment as outside the scope of LOL‘s restricted participation. LOL filed a Motion to Compel, seeking lease agreements and a forestry operations report from Hu Honua, in order to address the cost of biomass fuel supply and GHG emissions from the facility‘s operations. However, the PUC denied LOL‘s motion, finding that “LOL‘s Motion to Compel, if granted, would cause an undue delay in this proceeding.”
Thus, although the 2017 D&O acknowledged LOL‘s attempts to discuss the Amended PPA‘s impacts on LOL‘s right to a clean and healthful environment, as defined by
Due to the PUC‘s failure to allow LOL to present evidence and argument concerning its right to a clean and healthful environment, as defined by
3. The PUC‘s Denial of LOL‘s Motion to Upgrade Status
LOL asserts that the PUC‘s denial of its Motion to Upgrade Status in Order No. 34651 was clearly erroneous and constituted an abuse of discretion. LOL further argues that its “participant” status and the restriction of its participation to two issues in the 2017 Docket denied it a sufficient opportunity to protect its constitutional right to a clean and healthful environment, as defined by
Hu Honua, HELCO, and the PUC argue that it was within the PUC‘s discretion to find that LOL‘s motion failed to satisfy the factors under
LOL‘s appeal of Order No. 34651 is timely. Under
In Kilakila, this court considered whether the BLNR‘s decision to approve a permit, without either granting or denying Kilakila‘s request for a contested case hearing, was a “final decision and order” within the meaning of
Here, Order No. 34651 Denying LOL‘s Motion to Upgrade Status was not required to be appealed within thirty days because it did not constitute a “final decision and order” of the PUC. The order denied LOL party status and confirmed LOL‘s limited participant status, but did not resolve all other outstanding issues in the 2017 Docket. Thus, unlike the agency decisions in Kaleikini and Kilakila, which provided appellants the “requisite finality” by “end[ing] the litigation[,]” the PUC‘s Order No. 34651 merely maintained LOL‘s participation in the proceeding. See Kilakila, 131 Hawai‘i at 203, 317 P.3d at 37. Therefore, LOL‘s appeal would have been unripe until the PUC issued the 2017 D&O, which represents the “final decision and order” of the PUC. The PUC issued the 2017 D&O on July 28, 2017, which, along with Order No. 34651 Denying LOL‘s Motion to Upgrade Status, was appealed by LOL on August 26, 2017. As LOL filed its notice of appeal twenty-nine days after the PUC‘s 2017 D&O, its appeal is timely.
b. We Need Not Decide Whether the PUC Abused its Discretion or Violated Due Process by Denying LOL‘s Motion to Upgrade Status
LOL argues that the limitation of its participation to Sub-issue Nos. 2.a.i and 2.b denied it a meaningful opportunity to address its constitutional right to a clean and healthful environment. However, as discussed above, the record does not establish that the PUC explicitly considered the reduction of GHG emissions at all in the 2017 Docket. It is therefore clear that the PUC misconstrued this aspect of its statutory duty, which was fundamental to LOL‘s potential role in the proceeding. As such, it appears the PUC‘s denial of LOL‘s Motion to Upgrade Status was premised on a flawed understanding of the relevant inquiry, and therefore we cannot say whether such denial constituted an abuse of discretion.
LOL further argues that the PUC‘s denial of its Motion to Upgrade Status violated its due process rights by impeding its ability to obtain access to documents. However, the record does not establish that the PUC restricted LOL‘s access to documents due to its status as a limited participant. Order No. 34597, which established, inter alia, a final statement of the issues and LOL‘s scope of participation in the 2017 Docket, limited LOL‘s participation to Sub-issue Nos. 2.a.i and 2.b, but did not restrict the manner of its participation within those issues. Further, Protective Order No. 34555, which “govern[ed] the classification, acquisition, and use of trade secrets, and other confidential information” produced in the docket, provided that “[a]ll parties or participants to all or any portion of this docket . . . shall be entitled to all confidential information under the provisions of this Protective Order to the extent allowed by the commission.” (Emphasis added). LOL does not allege or demonstrate that access to documents designated as “confidential” was given to parties, but denied to participants. Accordingly, it is not apparent from the record that LOL would have had greater access to documents had the PUC granted its Motion to Upgrade Status.
In sum, on remand, it is within the PUC‘s discretion to determine the extent of LOL‘s participation in the proceeding, pursuant to
IV. CONCLUSION
As set forth above,
The PUC‘s 2017 D&O is therefore vacated and this case is remanded to the PUC for proceedings consistent with this opinion.
Lance D. Collins for appellant
Clyde J. Wadsworth (Kaliko‘onalani D. Fernandes with him on the brief) for appellee PUC
Margery S. Bronster (Rex Y. Fujichaku and Kelly A. Higa with her on the brief) for appellee Hu Honua Bioenergy, LLC
Joseph A. Stewart (David M. Louie and Aaron R. Mun with him on the brief) for appellees HECO and HELCO
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard P. Pollack
/s/ Michael D. Wilson
Notes
The executive director of the division of consumer advocacy shall be the consumer advocate in hearings before the public utilities commission. The consumer advocate shall represent, protect, and advance the interests of all consumers, including small businesses, of utility services.
The responsibility of the consumer advocate for advocating the interests of the consumer of utility services shall be separate and distinct from the responsibilities of the public utilities commission and those assistants employed by the commission. The consumer advocate shall have full rights to participate as a party in interest in all proceedings before the public utilities commission.
(a) The consumer advocate is, ex officio, a party to any proceeding before the commission. . . .
(b) The consumer advocate shall further apprise the commission and the parties of record of any facts which relate to the protection or advancement of the consumer interest.
(Emphasis added). Other than the HAR section numbers it references,(a) The commission may permit participation without intervention. A person or entity in whose behalf an appearance is entered in this manner is not a party to the proceeding and may participate in the proceeding only to the degree ordered by the commission. The extent to which a participant may be involved in the proceeding shall be determined in the order granting participation or in the prehearing order.
(b) A person who has a limited interest in a proceeding may make an application to participate without intervention by filing a timely written motion in accordance with sections 6-61-15 to 6-61-24, section 6-61-41, and section 6-61-57.
(c) The motion shall provide:
(1) A clear and concise statement of the direct and substantial interest of the applicant;
(2) The applicant‘s position regarding the matter in controversy;
(3) The extent to which the participation will not broaden the issues or delay the proceeding;
(4) The extent to which the applicant‘s interest will not be represented by existing parties;
(5) A statement of the expertise, knowledge or experience the applicant possesses with regard to the matter in controversy;
(6) Whether the applicant can aid the commission by submitting an affirmative case; and
(7) A statement of the relief desired.
(Emphasis added).On its own motion, the board may hold a contested case hearing. Others must both request a contested case and petition the board to hold a contested case hearing. An oral or written request for a contested case hearing must be made to the board no later than the close of the board meeting at which the subject matter of the request is scheduled for board disposition. An agency or person so requesting a contested case must also file (or mail a postmarked) written petition with the board for a contested case no later than ten calendar days after the close of the board meeting at which the matter was scheduled for disposition. For good cause, the time for making the oral or written request or submitting a written petition or both may be waived.
(Emphasis added).A hearing on a contested matter may be requested by the board on its own motion or upon the written petition of any government agency or any interested person who then properly qualifies to be admitted as a party. An oral or written request for a contested case hearing must be made by the close of the public hearing (if one is required) or the board meeting at which the matter is scheduled for disposition (if no public hearing is required). In either situation, the person or agency requesting the contested case hearing must file (or mail and postmark) a written petition with the board not later than ten days after the close of the public hearing or the board meeting, whichever is applicable. The time for making an oral or written request and submitting a written petition may be waived by the board.
- . . . [T]he direct and substantial interest of the applicant;
- The applicant‘s position regarding the matter in controversy;
- The extent to which the participation will not broaden the issues or delay the proceeding;
- The extent to which the applicant‘s interest will not be represented by existing parties;
- A statement of the expertise, knowledge or experience the applicant possesses with regard to the matter in controversy;
- Whether the applicant can aid the commission by submitting an affirmative case; and
- . . . [T]he relief desired.
The purpose of [the] chapter is to address the effects of climate change to protect the State‘s economy, environment, health, and way of life. [The] chapter establishes the framework for the State to:
- Adapt to the inevitable impacts of global warming and climate change, including rising sea levels, temperatures, and other risk factors; and
- Mitigate its greenhouse gas emissions by sequestering more atmospheric carbon and greenhouse gases than the State produces as quickly as practicable, but no later than 2045.
- A person may make an application to intervene and become a party by filing a timely written motion in accordance with sections 6-61-15 to 6-61-24, section 6-61-41, and section 6-61-57, stating the facts and reasons for the proposed intervention and the position and interest of the applicant.
- The motion shall make reference to:
- The nature of the applicant‘s statutory or other right to participate in the hearing;
- The nature and extent of the applicant‘s property, financial, and other interest in the pending matter;
- The effect of the pending order as to the applicant‘s interest;
- The other means available whereby the applicant‘s interest may be protected;
- The extent to which the applicant‘s interest will not be represented by existing parties;
- The extent to which the applicant‘s participation can assist in the development of a sound record;
- The extent to which the applicant‘s participation will broaden the issues or delay the proceeding;
- The extent to which the applicant‘s interest in the proceeding differs from that of the general public; and
- Whether the applicant‘s position is in support of or in opposition to the relief sought.
- The motion shall be filed and served by the applicant in accordance with sections 6-61-21 and 6-61-57.
- Intervention shall not be granted except on allegations which are reasonably pertinent to and do not unreasonably broaden the issues already presented.