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Electronically Filed
Supreme Court
SCOT-22-0000418
13-MAR-2023
08:51 AM
Dkt. 343 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

In the Matter of the Application of

HAWAIʻI ELECTRIC LIGHT COMPANY, INC.

For Approval of a Power Purchase Agreement for Renewable

Dispatchable Firm Energy and Capacity.

SCOT-22-0000418

APPEAL FROM THE PUBLIC UTILITIES COMMISSION

(Docket No. 2017-0122)

MARCH 13, 2023

RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.;

WITH WILSON, J., ALSO CONCURRING SEPARATELY

OPINION OF THE COURT BY EDDINS, J.

Over ten years ago, energy company Hu Honua had a

brainwave: it could produce renewable energy by burning trees.

The company sought regulatory approval to supply energy to

Hawaiʻi Island using a biomass power plant. Last summer,

approval for that energy deal was denied. Hu Honua appeals the
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denial, arguing that the Public Utilities Commission (PUC)

misunderstood its mandate and held Hu Honua to an unfair

standard.

We disagree. The PUC understood its public interest-minded

mission. It faithfully followed our remand instructions to

consider the reasonableness of the proposed project’s costs in

light of its greenhouse gas emissions and the project’s impact

on intervenor Life of the Land’s members’ right to a clean and

healthful environment. It stayed true to the language of its

governing statute HRS § 269-6(b) (Supp. 2021) by measuring the

project’s cost and system impact. And it acted properly within

its role as fact-finder when it evaluated Hu Honua by its own

statements and promises and, ultimately, found them

unconvincing.

Finding no error, we affirm the PUC’s decision rejecting

the power purchase agreement between Hu Honua and the Hawaiʻi

Electric Light Company, Inc.

I.

In 2012, Hawaiʻi Electric Light Company, Inc. (HELCO)

approached its regulator, the Public Utilities Commission, about

entering into a power purchase agreement (PPA) with private

company Hu Honua Bioenergy, LLC (Hu Honua). Under the

agreement, Hu Honua would convert an abandoned power plant in

Pepeʻekeo, Hawaiʻi. The plant would produce energy by burning

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woody biomass — mainly locally-grown eucalyptus trees. HELCO

would purchase this energy to service Hawaiʻi Island’s power

grid.

In 2017, the PUC granted HELCO a waiver from the

competitive bidding process and held a contested case hearing

over the PPA. Life of the Land (LOL), a Hawaiʻi-based community

action group dedicated to protecting and preserving the ʻāina,

sought to intervene in the hearing. They were given limited,

rather than full participant, status. The PUC ultimately

approved an Amended PPA between Hu Honua and HELCO for a thirty-

year term. LOL appealed the decision.

In Matter of Hawaiʻi Elec. Light Co., Inc., 145 Hawaiʻi 1,

445 P.3d 673 (2019) (HELCO I), this court vacated the PUC’s

decision. We told the commission to hold a new hearing. Our

remand instructed the PUC to give “LOL an opportunity to

meaningfully address the impacts of approving the Amended PPA on

LOL’s members’ right to a clean and healthful environment, as

defined by HRS Chapter 269.” Id. at 26, 445 P.3d at 698. We

also told the PUC to give “express consideration of GHG

emissions that would result from approving the Amended PPA,

whether the cost of energy under the Amended PPA is reasonable

in light of the potential for GHG emissions, and whether the

terms of the Amended PPA are prudent and in the public interest,

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in light of its potential hidden and long-term consequences.”

Id.

On remand, the PUC devoted its attention to a threshold

issue - whether it should “reissue” to HELCO a waiver from the

competitive bidding process. Matter of Hawaiʻi Elec. Light Co.,

Inc., 149 Hawaiʻi 239, 240, 487 P.3d 708, 709 (2021) (HELCO II).

It decided to deny the waiver. Id. Since HELCO now had no

waiver, the PUC declined to consider the merits of the Amended

PPA. Id.

This time, Hu Honua appealed. Because the competitive

waiver issue was outside the scope of HELCO I’s remand, we

returned the case. We repeated our remand order from HELCO I.

Id. at 242, 487 P.3d at 711.

The PUC held a new contested case hearing on the Amended

PPA in early March 2022. Before the evidentiary hearings began,

Hu Honua brought several motions centered on Act 82, which had

amended HRS § 269-6(b) in 2021. HRS § 269-6(b) is the primary

statute governing the PUC’s evaluation of energy projects like

the Amended PPA. It requires the PUC to engage in “public

interest-minded balancing.” Matter of Maui Elec. Co., Ltd., 150

Hawaiʻi 528, 532, 506 P.3d 192, 196 (2022) (Paeahu).

Hu Honua argued that Act 82 changed things. It said the

PUC could now only consider GHG emissions from fossil fuels.

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Emissions from other sources, such as biomass burned to produce

renewable energy, had to be kept out of the equation.

The commission rejected this approach. It concluded that

Act 82 did not materially alter its statutory obligations under

HRS § 269-6(b).

At the hearings, Hu Honua and HELCO maintained that the

Amended PPA served the public interest. Yet they admitted that

by their own numbers, the proposed project would produce massive

carbon emissions - 8,035,804 metric tons over its 30-year term.

The vast majority of these emissions would come from the plant’s

routine operations. Trucking trees to the plant would emit

carbon. And when the trees burned, “stack emissions” would rise

into the atmosphere.

But Hu Honua made a promise: the project would ultimately

be carbon neutral. Hu Honua intended to offset its emissions by

planting trees. These trees would sequester, by Hu Honua’s

count, 8,066,309 metric tons of carbon. That would zero out the

project’s projected eight million metric ton carbon price tag.

If everything went right, it would even make the project carbon

negative.

Hu Honua hoped to source all of its “feedstock,” that is,

the organic matter it hoped to burn for fuel, from locally-grown

eucalyptus. Its tree supplier, a sister company to Hu Honua,

would initially source eucalyptus from Pāhala, Pāʻauhau, and

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Hāmākua plantations on Hawaiʻi Island. According to Hu Honua,

those lands have enough trees to fuel the project for nine

years. Hu Honua suggested it could help the State by

eradicating “invasive species” on Hawaiʻi Island and burning them

as an additional fuel source. Hu Honua also claimed that

sourcing feedstock outside of the island would only occur in an

emergency.

To meet its sequestration goals, Hu Honua would have to

plant a lot of trees. The company maintained that the bulk of

this tree-planting — expected to sequester 5,882,322 metric tons

of carbon — would occur on leased Hawaiʻi Island land. In Hu

Honua’s sequestration analysis, it included the three

plantations it expected to source feedstock from. The

sequestration analysis assumed that no trees would be cut down

at these plantations between 2017 and 2021. But in testimony,

Hu Honua indicated that harvesting had taken place at the Pāhala

location during this period. The company did not demonstrate

that it was currently replanting trees on this plantation. In

fact, it stated that it does not plan to regrow the Pāhala and

Hāmākua plantations at all.

Hu Honua provided the PUC with a “carbon calculator” that

indicated its estimated emissions and sequestration numbers.

The calculator showed significant increases in sequestration

between 2021 and 2029. This implied an expansion in Hu Honua’s

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current leasing regime. All those extra trees would have to be

planted somewhere.

But Hu Honua did not present evidence that it had leases

secured that extended through the PPA’s 30-year term. Rather,

Hu Honua indicated that it had non-binding “good faith” lease

negotiations that would not be finalized until the PUC approved

the Amended PPA.

Hu Honua promised that if its sequestration performance

fell short of its estimates, it would buy carbon offsets to make

up for the deficit. It pledged up to $450,000 for this effort,

believing that it could buy carbon offsets at the price of $15

per ton. Hu Honua did not identify the sources of the offsets,

only saying that “reputable sources” would sell them. And Hu

Honua did not explain how the PUC would verify the sequestration

produced through these sales.

To supplement Hu Honua’s carbon calculator, HELCO submitted

its own analysis. This analysis measured GHG emissions from Hu

Honua’s project against a baseline without the project. HELCO

estimated that Hu Honua’s project would prevent 1,464,742 metric

tons of emissions from entering the atmosphere. HELCO’s

consultant reached this number by combining an estimate of GHG

emissions that would be avoided because of the project relative

to the baseline, and the project’s estimated lifetime emissions.

HELCO’s analysis took the carbon negative lifetime emissions

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estimate from Hu Honua’s analysis and plugged it into its own.

Though HELCO labeled its analysis independent, it in fact relied

on Hu Honua’s.

On May 23, 2022, the PUC issued Decision and Order No.

38395. It declined to approve the Amended PPA.

In the order, the PUC found that the project would produce

massive GHG emissions, and that Hu Honua’s promise of carbon

neutrality rested on speculative, uncertain assumptions. The

commission expressed serious doubts that Hu Honua could actually

live up to its sequestration estimates. It pointed out that Hu

Honua had no firm plans for leasing land to plant trees. Using

the carbon calculator provided by Hu Honua, the commission found

that even changes as small as one-percent in Hu Honua’s

emissions and sequestration estimates would make the project a

net carbon emitter. The commission calculated that the back-up

money Hu Honua pledged, even if carbon offsets were available at

the rate it expected, would only buy 30,000 metric tons of

carbon offsets — less than one sixth of the carbon the project

(per Hu Honua’s own estimates) would emit annually.

The PUC was particularly troubled by the frontloading of

GHG emissions in the project. While Hu Honua pledged to be

carbon neutral on an annual basis by the end of 2035, the

commission determined (again based on Hu Honua’s numbers) that

the overall impact of the project would not be carbon neutral

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until 2047, two years after Hawaiʻi’s 2045 zero emissions target

came and went. For the first 25 years of the project, Hu Honua

would be a significant net emitter. If Hu Honua did not meet

its sequestration commitments, the PUC feared that the damage to

the atmosphere could not be easily undone.

The PUC also found that the Amended PPA would significantly

increase costs for rate-payers. Six years into the project, the

fuel price was set to spike 15%, for no discernable reason.

That spike - in combination with other pricing terms and

adjustments for inflation - meant that the cost would

continually rise. Overall, the PUC found that the project would

increase the typical consumer bill by an average of $10.97 a

month throughout the full 30-year term. The PUC deemed this a

significant bill impact. HELCO stated that there were no

realistic modeling assumptions under which the project “could

produce a net savings to the system or customer.” Based on the

project’s high GHG emissions, the PUC did not consider these

higher costs to consumers reasonable.

The PUC had another big time concern. The commission found

that not only would the project fail to accelerate the

retirement of fossil-fuel, it would displace other, more

environmentally friendly renewable resources. Hu Honua said

that its plant would only displace the fossil fuel-based Keāhole

power plant. However, HELCO, which actually controls energy

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dispatch, testified that this claim was “unrealistic” and

“contrary to [HELCO’s] practices” and “actual operational

conditions.” HELCO said that it would be “impossible” for the

project to avoid displacing other renewable resources. The

Consumer Advocate, a statutorily-mandated party to the

proceedings, estimated that almost 60% of Hu Honua’s generation

would replace renewable energy generation. Here, the commission

credited the testimony of HELCO and the Consumer Advocate over

Hu Honua’s. The PUC also credited HELCO’s testimony that the Hu

Honua project filled no pressing need in its power grid.

Summing up, the PUC found that the proposed project would

emit substantially more carbon than it sequestered for at least

the first 25 years of operation and raise ratepayer prices for

the full term. And the PUC found Hu Honua’s promise of eventual

carbon neutrality speculative at best. Based on these findings,

the PUC concluded that the Amended PPA was not in the public

interest. It rejected the agreement.

Hu Honua moved the PUC to reconsider its Decision and

Order. The PUC denied the motion in Decision and Order No.

38443.

Hu Honua appealed. It argues that (1) the PUC’s order

exceeded the scope of the HELCO I remand by considering energy

prices, (2) the PUC improperly applied HRS § 269-6(b) by not

limiting its comparison of the project to only fossil fuel

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alternatives, and (3) violated Hu Honua’s due process rights by

finding facts not in the record, applying a wrong evidentiary

standard, and subjecting Hu Honua to a carbon neutrality

requirement.

II.

A.

We begin with the scope of remand. Hu Honua characterizes

the HELCO I remand as confining the PUC to the “one discrete

issue” of GHG emissions. Considerations of other key issues

were “off-limits.”

Where, exactly, Hu Honua locates this limitation remains a

mystery. In HELCO I, we vacated the PUC’s order and remanded

for a new hearing. The PUC had to give “LOL an opportunity to

meaningfully address the impacts of approving the Amended PPA on

LOL’s members’ right to a clean and healthful environment, as

defined by HRS Chapter 269.” HELCO I, 145 Hawaiʻi at 26, 445

P.3d at 698. We said the hearing must include “express

consideration of GHG emissions that would result from approving

the Amended PPA, whether the cost of energy under the Amended

PPA is reasonable in light of the potential for GHG emissions,

and whether the terms of the Amended PPA are prudent and in the

public interest, in light of its potential hidden and long-term

consequences.” Id.

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Then, in HELCO II, this court explicitly considered the

scope of the HELCO I remand. We reminded the parties that they

were “fixed in the same position they were in following HELCO I”

and repeated our remand instructions verbatim. HELCO II, 149

Hawaiʻi at 242, 487 P.3d at 711.

Hu Honua seems to feel that the PUC’s consideration of

pricing is unfair because back in its 2017 Decision & Order the

PUC found the pricing reasonable. But that 2017 Decision &

Order was precisely what HELCO I vacated. HELCO I, 145 Hawaiʻi

at 28, 445 P.3d at 700. Based on the straightforward language

of the remand order, the PUC was not only at liberty to consider

pricing, it was required to consider the reasonability of the

project’s pricing in light of its GHG emissions. Hu Honua’s

insistence that no specific language directs further

consideration of energy costs is difficult to understand. Our

roadmap was a simple one, and we gave it twice.

Even setting the remand language aside, the PUC has a duty

to act in the public interest. See Haw. Const. art. XI, § 1;

HRS § 269-145.5(b) (2020) (“In advancing the public interest,

the commission shall balance technical, economic, environmental,

and cultural considerations . . .”); Paeahu, 150 Hawaiʻi at 534,

506 P.3d at 198 (principle that PUC must act in the public

interest is “incorporated throughout HRS chapter 269”).

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Protecting rate-payers by considering pricing impacts follows

from that public interest obligation.

B.

Hu Honua’s interpretation of HRS § 269-6(b) is equally

strained. “HRS Chapter 269 is a law relating to environmental

quality that defines the right to a clean and healthful

environment under article XI, section 9 by providing that

express consideration be given to reduction of greenhouse gas

emissions in the decision-making of the Commission.” In re

Application of Maui Elec. Co., Ltd., 141 Hawaiʻi 249, 264, 408

P.3d 1, 16 (2017) (MECO).

HRS § 269-6(b) sets out specific factors the PUC must

consider to determine whether the costs of a proposed energy

project are reasonable. These include (1) price volatility; (2)

export of funds for fuel imports; (3) fuel supply reliability

risk; and (4) greenhouse gas emissions. The PUC then subjects

these factors to “public interest-minded balancing.” Paeahu,

150 Hawaiʻi at 532, 506 P.3d at 196.

Hu Honua maintains that when applying these factors to a

renewable energy project, the “only permissible” comparison for

the PUC to draw is with fossil-fuel plants. Considering a

proposed renewable energy project’s relative impacts or the

displacement of other renewable energy projects is, apparently,

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out-of-bounds. If Hu Honua is right, the only relevant question

before the PUC was: is burning trees better than burning coal?

Neither the language of HRS § 269-6(b) nor the legislative

intent behind it supports this blinkered approach. By drawing a

hard line between fossil fuel and renewable energy, Hu Honua

elides a crucial fact — producing biofuel, unlike producing

other kinds of renewable energy such as solar or wind, emits

high quantities of GHG emissions. If the PUC couldn’t consider

Hu Honua’s relative impacts and the likelihood that it would

supplant other renewable projects, it would be forced to treat a

project expected to emit millions of metric tons of carbon as no

different from a project expected to emit almost no carbon,

merely because both draw on renewable energy sources.

But the legislature intended the PUC to consider

“potentially harmful climate change due to the release of

harmful greenhouse gases.” MECO, 141 Hawaiʻi at 263, 408 P.3d at

15. We do not lightly assume that the legislature would

sabotage its climate goals by limiting the PUC to artificial and

unhelpful analyses.

Further, HRS § 269-6 cannot be read in isolation from HRS

§ 225P-5 (Supp. 2021), another law relating to environmental

quality, which sets a state policy of achieving carbon

neutrality “as quickly as practicable, but no later than 2045.”

HRS § 225P-5 mandates that we reduce emissions now, before the

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damage done to the environment is irreversible — before action

becomes impossible for future generations. Hu Honua’s

constrained reading of HRS § 269-6(b) does not reflect the

legislature’s urgency.

Still, Hu Honua insists that Act 82, which recently amended

HRS § 269-6(b), alters this analysis. It does not.

Act 82’s primary purpose was to exempt minor actions from

the HRS § 269-6(b) analysis and to give the PUC discretion to

determine on a case-by-case basis whether proceedings involving

water, wastewater, and telecommunications projects require the

HRS § 269-6(b) analysis. The amendment also made a number of

small, non-substantive changes. Most relevantly, it arranged

the four factors, previously stated in a sentence, into a

numbered list. We don’t see how this typographical change in

any way touches the substance of the statute.

Hu Honua also invokes the act’s legislative history.

During the law-making process, language explicitly including

biomass was added and then removed from the amendment. Hu Honua

takes this as evincing a legislative intent to entirely exempt

biomass emissions from consideration. But, taken in context,

the legislature’s actions indicate its desire to preserve the

statute’s original language and interpretation. The legislature

was acting after MECO and HELCO I, cases that made clear HRS

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§ 269-6(b) applied to emissions from biomass plants. Adding

language to that effect would have been superfluous.

Also, Act 82’s main purpose was to exempt certain projects

from the PUC’s involved GHG analysis. Had the legislature truly

intended to exempt biomass emissions, it would have listed them

with the other exemptions.

HRS Chapter 269 defines the Hawaiʻi Constitution’s article

XI, section 9 right to a clean and healthful environment, which

encompasses the right to a life-sustaining climate system.

Paeahu, 150 Hawaiʻi at 538 n.15, 506 P.3d at 202 n.15.

Commanding a public agency charged with protecting the right to

a life-sustaining climate system to disregard GHG emissions from

a particular type of fuel source would undermine HRS Chapter

269. We don’t think the legislature intended to go there, much

less through a minor amendment bill.

C.

Lastly, Hu Honua asserts that the PUC violated its due

process rights by finding its own facts, applying a higher

evidentiary standard, and creating a carbon neutrality

requirement.

First, the PUC’s findings do not indicate that it tried to

become its own “expert.” Compiling data provided by Hu Honua’s

expert into a table does not produce new facts, nor does

weighing competing evidence and finding, for example, that

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HELCO’s projections were more credible than Hu Honua’s. Under

HRS § 269-92 (2020), electric companies must reach full carbon

neutrality by 2045. By calculating that Hu Honua’s project

would reach cumulative carbon neutrality in 2047, as opposed to

annual carbon neutrality in 2035, the PUC hewed to its statutory

mandate.

Nor does the PUC’s critical evaluation of the evidence Hu

Honua presented equate to applying a higher evidentiary

standard. Rather, it demonstrates a more mundane phenomenon: a

fact-finder finding one side’s facts unpersuasive.

Hu Honua stresses that it and HELCO were the only ones to

introduce expert evidence at the proceeding. If only one side

employs an expert, the argument seems to run, that expert must

be believed. But Hu Honua misunderstands its evidentiary

burden. Hu Honua had to persuade the PUC, not the other way

around.

Further, treating one side’s ability to retain an expert as

decisive in proceedings would unacceptably interfere with the

due process rights of parties who, while not able to field

competing expert witnesses, may have valid attacks to make on

the credibility or persuasive force of expert evidence.

Third, Hu Honua argues that the PUC applied a novel and

inappropriate standard: whether the project would achieve carbon

neutrality. But it was Hu Honua, not the PUC, who introduced

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the idea of carbon neutrality into the proceedings. In fact, Hu

Honua went further – it pledged to be carbon negative. Carbon

neutrality was key to Hu Honua’s pitch, going directly to the

reasonability of its costs in light of its GHG emissions.

As HRS § 269-9 (2020) recognizes, higher energy costs may

be justified when the energy source avoids the harmful impacts

of fossil fuels. But biomass and fossil fuel sources share one

important defect — high GHG emissions. Hu Honua appears to have

recognized that its project would not be found reasonable by the

PUC if it offered both high costs and high emissions. So it

argued that its emissions, once offset by tree planting, would

amount to zero. How convincing the PUC found this carbon claim

is an issue of fact, not the creation of a new legal rule.

Even if the PUC adopted carbon neutrality as a standard, it

is not so clear that the agency would have erred.

We have said that an agency “must perform its statutory

function in a manner that fulfills the State’s affirmative

constitutional obligations,” Paeahu, 150 Hawaiʻi at 538, 506 P.3d

at 202, and that “[a]rticle XI, section 9’s ‘clean and healthful

environment’ right as defined by HRS chapter 269 subsumes a

right to a life-sustaining climate system,” id. at 538 n.15, 506

P.3d at 202 n.15. The right to a life-sustaining climate system

is not just affirmative; it is constantly evolving.

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The people of Hawaiʻi have declared “a climate emergency.”

S.C.R. 44, S.D. 1, H.D. 1, 31st Leg., Reg. Sess. (2021). Hawaiʻi

faces immediate threats to our cultural and economic survival:

sea level rise, eroding the coast and flooding the land; ocean

warming and acidification, bleaching coral reefs and devastating

marine life; more frequent and more extreme droughts and storms.

Id. For the human race as a whole, the threat is no less

existential.

With each year, the impacts of climate change amplify and

the chances to mitigate dwindle. “The Closing Window: Climate

crisis calls for rapid transformation of societies,” Emissions

Gap Report 2022, https://www.unep.org/resources/emissions-gap-

report-2022 [https://perma.cc/6JAR-RFZE]. “A stepwise approach

is no longer an option.” Id. at page xv.

The reality is that yesterday’s good enough has become

today’s unacceptable. The PUC was under no obligation to

evaluate an energy project conceived of in 2012 the same way in

2022. Indeed, doing so would have betrayed its constitutional

duty.

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Because the PUC’s actions aligned with its statutory and

constitutional obligations, we affirm PUC Order Nos. 38395 and

38443.

Bruce D. Voss /s/ Mark E. Recktenwald

(John D. Ferry III, Dean T.
/s/ Paula A. Nakayama
Yamamoto, Wil K. Yamamoto, and
Jesse J. Smith on the briefs) /s/ Sabrina S. McKenna
for Hu Honua Bioenergy, LLC
/s/ Michael D. Wilson
Joseph A. Stewart /s/ Todd W. Eddins
(Marissa L.L. Owens, David M.
Louie, Bruce A. Nakamura, and
Aaron R. Mun on the briefs)
for Hawaiʻi Electric Light
Company, Inc.

Edward M. Knox
(Scott D. Boone on the briefs)
for Division of Consumer
Advocacy Department of Commerce
and Consumer Affairs

Mark J. Kaetsu
(Caroline C. Ishida on the
briefs)
for Public Utilities Commission

Chase H. Livingston
for Life of the Land

Sandra-Ann Y.H. Wong

for Tawhiri Power LLC

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