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Court upholds approval of Paeahu Solar agreement

Project still mired in drawn-out conflict with neighbor coalition

A map shows the proposed location of Paeahu Solar, a 15-megawatt solar, 60-megawatt-hour battery storage project planned for 150 acres mauka of Maui Meadows. The Hawaii Supreme Court earlier this month upheld a decision by the state Public Utilities Commission to approve a power purchase agreement between Maui Electric Co. and Paeahu Solar. Graphic courtesy of Innergex

Finding that the state Public Utilities Commission properly evaluated a Maui community group’s allegations of harm, the state Supreme Court has upheld the commission’s approval of a power purchase agreement between Maui Electric Co. and Paeahu Solar.

In an opinion published March 2, the court said the PUC “lawfully approved” the utility’s agreement to purchase renewable energy from Paeahu’s solar-plus-battery plant that Canada-based Innergex is developing on 150 acres owned by Ulupalakua Ranch in a county agricultural district near Wailea.

The purchase agreement was challenged by Pono Power Coalition, a community group including residents of Maui Meadows and Kihei and other supporters.

The group maintained that the PUC “should have made explicit findings identifying the affected trust resources and assessing how they would be protected.”

It alleged that the PUC “abandoned its trust responsibilities by concluding that other permitting agencies would review Paeahu’s studies relating to cultural and natural resources before they approve or deny the requested permits.”

The Supreme Court opinion found that the PUC review “aligned with its public trust duties.”

The PUC’s “regulatory mission is broad,” the opinion noted. Along with ensuring the reliability of the state’s electric system, the commission “must also safeguard energy affordability” and consider the state’s dependence on fossil fuels and the goal of 100 percent renewable energy by 2045.

State law says that “in advancing the public interest, the commission shall balance technical, economic, environmental and cultural considerations associated with modernization of the electric grid …”

The court said the record showed that the PUC “made detailed findings” that the project would result in “a significant reduction” in greenhouse gas emissions and would be a “significant step” toward lower energy prices.

The PUC also looked at Paeahu’s consideration of alternative sites. Because of archaeological, cultural and topographical concerns, the PUC found that wasn’t possible, according to the opinion.

It said Pono Power didn’t show how the project would exacerbate water runoff or damage native plants.

“We conclude that the PUC properly evaluated Pono Power’s allegations of harm,” the court opinion said. “Hand-waving without meaningful support cannot establish a ‘reasonable’ threat. The heightened duty to assess and make specific findings about the affected trust resources was not triggered here. And the PUC’s statutory balancing sufficiently satisfied its public trust duties.”

Wailuku attorney Lance Collins, who represented Pono Power, said, “The coalition is disappointed but accepts the court’s decision that requires the Maui Planning Commission to consider the community’s concerns.”

He noted that the court said that the Maui Planning Commission process is the more appropriate forum to address all of the issues raised to the PUC.

“The coalition is also very pleased that, for the first time, the Supreme Court recognized that climate change must be evaluated by agencies in reviewing public trust impacts,” Collins said.

The opinion is separate from a 2nd Circuit Court decision in January to allow the Maui Meadows Neighborhood Association and Pono Power to intervene in the Paeahu Solar project before the Maui Planning Commission.

* Lila Fujimoto can be reached at lfujimoto@mauinews.com.

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