The state Intermediate Court of Appeals on June 13 denied a pair of appeals seeking an updated environmental review for Puna Geothermal Venture.
One of the appeals dismissed was brought by Puna Pono Alliance, Luana Jones, Shana Ritsema and Jon Olson; the other was by Sara Steiner. Both named the state Department of Health and PGV as defendants.
A third appeal by plaintiffs Annamarie Kon, Martha “Cory” Harden and Gene Lang Thomas is still active, according to online court records.
All three appeals were filed in June 2021 after Hilo Circuit Judge Henry Nakamoto, who presides over Environmental Court, dismissed all three individual Circuit Court lawsuits, which were filed in October 2020.
The lawsuits claimed the 1987 environmental impact statement for the geothermal power plant near Pahoa is inadequate and outdated. The complaints sought an updated EIS before PGV — which had been knocked offline more than two years after the 2018 eruption of Kilauea — resumed the production of electricity.
The DOH had determined an additional environmental review wasn’t required for the renewal of an air-pollution control permit PGV needs to operate.
In a Sept. 4, 2020, letter to PGV and opponents, then-state Health Director Bruce Anderson wrote, “The DOH has taken a hard look at all the demands for (environmental review), and it has concluded independently that a new or supplemental environmental review is not required.”
In written orders dismissing Puna Pono Alliance’s and Steiner’s suits, Nakamoto noted Anderson’s environmental review decision wasn’t made in a contested case hearing and concluded his court “lacks the appellate jurisdiction” to overturn it.
“Because the director’s determination was not made after a contested case hearing, the Circuit Court correctly dismissed the actions for lack of subject matter jurisdiction,” the appeals court ruled.
In addition, the state Public Utilities Commission on June 16 issued an order denying Puna Pono Alliance’s motion for reconsideration of the PUC’s March 16 approval, with conditions, of an amended power purchase agreement between PGV and Hawaiian Electric.
The agreement would, among other things, allow PGV to expand its facilities to generate up to 46 megawatts of power, up from the 38 megawatts maximum in its previous contract.
One of the conditions the PUC specified before expansion can take place is an environmental review. In its motion for consideration, Puna Pono Alliance argued that the PUC should be the accepting agency of a supplemental EIS, with DOH the conducting agency.
The PUC’s denial of the motion states its decision was made in consultation with the state Consumer Advocate.
“The Consumer Advocate believes that Puna Pono’s central contention in the motion for reconsideration ‘is that the commission erred in relying on the Office of Planning and Sustainable Development’s determination that the County of Hawaii shall be the appropriate accepting agency for any environmental review,’” the PUC order stated.
In its denial, the PUC concluded it “does not have the authority to grant Puna Pono’s first request for relief, i.e., requiring DOH to conduct (the environmental) review for the project” and that the March 16 order “already provides for Puna Pono’s second request for relief, i.e., reopening this proceeding if (environmental) review data shows it is appropriate.”
Email John Burnett at jburnett@hawaiitribune-herald.com.
