A former Hawaii Public Utilities Commission attorney says the commission relied on a flawed legal theory when it approved a controversial wind farm in Kahuku over objections of residents and the Hawaii Consumer Advocate in 2014.

Despite repeated concerns raised by community members and the North Shore and Koolauloa neighborhood boards, the project’s developer, AES Corp., and Hawaiian Electric Co. used an erroneous legal argument to push through AES’ Na Pua Makani wind farm, says Ryan Hurley, a Honolulu attorney who served as a PUC lawyer from October 2013 to November 2014. The law required the commission to complete an environmental review first, Hurley says.

“Unfortunately, the PUC agreed, and in direct contradiction to the State Consumer Advocate’s position and the PUC’s own precedent, approved the project without a public hearing or waiting for the EIS,” Hurley, who once worked on the matter for the PUC, wrote in a detailed letter to Civil Beat. “With PUC approval being the hardest and only truly discretionary approval, this virtually guaranteed the project would be built.”

Nathan Eagle/Civil Beat

Hurley is a self-described wind and solar energy proponent, and he has a resume to prove it. Besides working for the PUC, he’s also worked for the Blue Planet Foundation and the Hawaii State Energy Office. But Hurley said the negative impacts of some projects outweigh the positives.

“I believe the Na Pua Makani Wind project is one of these projects and should NOT be built,” Hurley wrote. “This project truly represents the ‘wrong’ way to develop a renewable energy project in Hawaii and exposes the many flaws in Hawaii’s regulatory and permitting systems.”

Ryan Hurley

“While the developer and HECO like to tout the ‘many neighborhood board and community meetings’ held during the permitting process,” he added, “they fail to mention what the community actually said, or that the neighborhood boards actually opposed their project.”

He also said the PUC approved a deal that pays the developer more for power than necessary.

“The price of the Na Pua Makani project was bad for the ratepayer in 2014 and is still bad today,” he said. The project was approved with a price of almost 15 cents per kilowatt-hour at a time when the PUC was approving solar projects at 13-14 cents per kilowatt hour, he said. Recent prices for solar farms with battery storage have dropped below 10 cents per kilowatt hour, he said.

HECO declined to comment.

AES officials did not comment specifically about the allegations, but the company issued a statement saying it was committed to working with the community and willing to address concerns.

“We remain in close touch with people throughout the North Shore community – including those who have lingering questions about our project,” said the statement by Mark Miller, chief operating officer for AES’s U.S. power generation businesses. “We are here and ready to talk to anyone interested in learning more.”

Hurley’s comments come as Na Pua Makani faces intense protests from residents opposing the project. As of late last week, Honolulu police had made at least 111 arrests related to the protests.

The project also faces separate legal challenges from two environmental organizations: Life of the Land and Keep the North Shore Country.

State Sen. Gil Riviere, who is a director of Keep the North Shore Country, echoed Hurley’s argument that the developer, utility and regulators largely ignored community concerns. He described the community outreach as a sham, part of “a playbook used by all the developers” to meet with concerned citizens without using any of their input.

“They engaged the community,” Riviere said. “But every time, the community said, ‘No. Go away. We don’t want it.’”

Keep the North Shore Country has filed a lawsuit challenging the Hawaii Board of Land and Natural Resources’ acceptance of a conservation plan and license to kill certain numbers of endangered Hawaiian hoary bats as an incidental side effect of the project. After the board accepted the plan over a hearing officer’s recommendation to reject the plan, Keep the North Shore Country appealed the board’s decision to circuit court, which upheld the board’s decision. The organization has appealed the court’s ruling to Hawaii’s Intermediate Court of Appeals.

Life of the Land’s challenge focuses on the PUC’s approval of the contract between the wind farm and HECO, which the PUC approved. It centers on the license to incidentally kill some of the endangered bats, an alleged project “site control” requirement, the price HECO will pay for power from the wind farm, and a failure by the PUC to analyze the project’s effects on greenhouse gas emissions.

Hawaiian Electric has sought to rebut the claims, noting, among other things that Life of the Land had previously argued in favor of wind projects as a way to address greenhouse gas emissions when opposing a Big Island proposal to build a generator fueled with cut-down trees.

Dan Lin/Civil Beat

Hurley’s argument takes a different tack. Although Hurley raises concerns about price and environmental problems, he focuses more narrowly on the PUC’s decision to approve the project before an environmental impact statement was accepted. At the time, two leading environmental lawyers, David Henkin of Earthjustice and Denise Antolini of the University of Hawaii, William S. Richardson School of Law, both said the PUC’s action likely violated Hawaii’s environmental review law.

The Hawaii Consumer Advocate at the time, Jeffrey Ono, was also pushing for the PUC to wait for the environmental review to be completed before approving the wind farm. Ono’s rationale was the EIS could inform a decision on whether the project was in the public interest: specifically whether its benefits outweighed its negative impacts on the community.

“The EIS process should provide a detailed record of all pertinent health, safety, and aesthetic impacts and allow the community the opportunity to share its concerns,” Ono wrote. “The Commission could then take these findings and weigh them against the positive energy cost benefits this project could have in serving all Hawaiian Electric ratepayers.”

Jay Griffin, the current chairman of the PUC, declined to comment. But he noted the issues raised by Hurley now were thoroughly discussed in the commission’s decision and order approving the project in December 2014.

In the order, the commission noted that the Board of Land and Natural Resources was the agency in charge of the EIS process and that it would decide whether to accept the statement. The commission didn’t have to wait, it said.

“The commission concludes that it is not necessary to await the outcome of the EIS before approving the PPA at issue here,” the commission said. “The EIS proceedings are designed to address different matters, in particular, to address the objectives of the State’s environmental policy as set forth in HRS §§ 344-3 and 344-4.”

Cory Lum/Civil Beat

In an interview, Hurley said the point of raising the concerns again now is to show opposition to the wind farm isn’t new, and that there were legitimate legal questions surrounding the process that’s often cited to justify the project.

It’s not just about the Na Pua Makani project, which he called “a horrible idea” that “shouldn’t be built.”

More broadly, he said, it’s about a process that at times fails to allow meaningful participation by the public.

“We’re going to sour the communities on these because they feel they don’t have a voice,” he said.