Environmental & Energy Law Professor Richard Wallsgrove joins producer/host Coralie Chun Matayoshi to discuss how Hawaii is doing in meeting its energy and transportation goal of net zero carbon emissions by 2045, why renewable energy sources can help avoid rolling blackouts and increase resiliency during disasters, settlement of the Navahine lawsuit filed by Hawaii youth, and recent U.S. Supreme Court rulings that have significantly impaired the Environmental Protection Agency’s ability to limit air and water pollution, regulate the use of toxic chemicals, and reduce greenhouse gases.
Q. Last month, we experienced the hottest day on Earth ever, with no end in sight for heat waves, wildfires and hurricanes. Greenhouse gas emissions trap the sun’s heat, and we know that about 2/3 of global emissions come from fossil fuel-based energy systems. Hawaii has been a leader in trying to move the needle towards renewable energy and net zero emissions. How are we doing?
In some ways, Hawaii is doing great. For electricity, in 2015 Hawaii became the first state in the U.S. to mandate that we shift completely away from fossil fuels and toward renewable energy. Over that decade, the greenhouse gas intensity of our electricity system has declined steadily each and every year and it continues to go down. Those declines put us nearly on track for an electricity system free of carbon pollution in time for the state’s 2045 target. And as a bonus, the transition to renewable energy is also saving money. That suggests that this transition will continue speeding along and Hawaiʻi can continue to be a model for other parts of the world However, as the emissions from electricity go down, it is leaving our transportation system as the largest remaining source of emissions. And so on that front there is much work to be done.
Q. Is electricity from renewable sources able to help avoid rolling blackouts?
Absolutely yes. Traditional fossil fuel plants were the root cause of blackouts that occurred earlier this year when the two large oil-burning generators at the Waiau power plant failed without warning on the same day. The close call last week happened when the Kalaeloa private power plant went offline without warning. The long outage downtown this summer was caused by the failure of an underground power line. Modern renewable energy can be less clunky and more resilient against outages because it relies less upon big power plants and physical wires to move power from those plants out to homes and businesses. After more than a decade of increasing renewable energy on Oahu, outages have been less frequent in recent years than they were 10 years ago. This type of resilience can be seen in the thousands of rooftop solar systems powering Hawaii’s grid. To unexpectedly lose 100 megawatts of renewable energy, 10,000 solar-powered homes would have to break down all at once. It’s the difference between putting all your eggs in one basket, versus thousands. A study released earlier this summer from the University of Texas reaffirmed what we are seeing on the ground here – it found that a modern electricity grid relying primarily on diverse smaller sources of electricity like rooftop solar can maintain grid reliability and extend the life of old utility wires and poles – while cutting costs by 40%.
Essentially, we are sitting right at the divide between two competing visions for how to best transform the electricity system. Traditionally, electric utilities have relied on large, centralized power stations that feed electricity into a one-way grid that delivers electricity to homes and businesses. As a result, other parts of our energy system—such as how we move power around on transmission and distribution lines, and how utilities earn their revenue—have been tailored to that centralized model. Sticking to the status quo calls for developing renewables in the same way, with large solar and wind farms.
But the UT study (and many others) set out a competing vision for modern electricity systems—relying much more on decentralized sources of power like rooftop solar and home batteries, to match up with the decentralized demands for power. In that vision, the electric grid will become a two-way platform, and we will all be both consumers and producers of energy. Hawaii’s recent energy gains in rooftop solar and community solar are setting us up to benefit from resilience of this newer vision. Living on islands that are not connected to each other by power lines—and not connected to a continental grid—makes this particularly important and valuable.
Q. Even though the Big Island and Maui generate a large portion of their renewable power from wind farms, some are concerned by environmental factors like noise and harm to wildlife. The Hawaii Community Development Authority recently announced a partnership with Kanoa Winds Inc. to study a wind turbine that has been used in Japan to generate clean power for over 15 years. Tell us more about this.
Every source of energy has some impact on our environment. Fossil fuels have been particularly harmful, with impacts that cover the entire globe and that are as extreme as the extinction of entire species. Other energy sources have impacts that are more localized, such as the need to be cautious about the impacts of wind turbines on some species of birds and bats. This reality is that there is no silver bullet. This means making energy choices is really a process of balancing tradeoffs. For wind turbines, the energy they can produce goes up dramatically even with a small increase in size. And when a single turbine can harness lots of energy, that means the electricity it generates has a lower price in terms of dollars and cents. Other parts of the world are installing turbines that dwarf the size we typically see here in Hawaii. But a bigger turbine also means that the blades move faster, creating a bigger risk for birds. There are ways to lower that risk – such as stopping or slowing the turbines at times of day when birds and bats are more active. But the tension between impact and cost efficiency remains.
Used in the right way, technological advancements can help with this tension. For example, the Hawaii Community Development Authority in partnership with Kanoa Winds is evaluating something called a vertical-axis turbine. Instead of large blades that rotate, these are more like towers that spin. They do not create the same risks for wildlife, but they also tend to generate much less power. They could be a good choice for places without as much space, but where having lots of smaller poles might fit alongside existing urban infrastructure — such as Kakaako Makai where HCDA is testing the vertical axis design. They also might be an option for places with large populations of the types of birds that can be affected by a traditional wind turbine – such as Kauai which currently uses no wind power because of the need to protect nesting seabirds.
Q. The other big consumer of energy is transportation. Tell us about the Navahine lawsuit that was filed by Hawaii youths against the State Department of Transportation.
For transportation—whether on the ground, in the water, or in the air—the vast majority of our energy still comes from fossil fuels. The law is fuzzy, and that is a big part of the problem. Other than an overall target to have a clean energy economy by 2045, the state has not adopted a clear policy on clean transportation targets. In 2017, all four Hawaii Mayorsadopted a soft policy target of 100% clean transportation by 2045, but those targets do not have the same implementation mechanisms as the electricity mandate. Navahine v. Hawaii Department of Transportation is a lawsuit filed by youth plaintiffs right here in Hawaii, asking the state to come up with a plan to reduce carbon pollution from transportation. It is part of a legal movement by youth plaintiffs across the U.S. and the globe, all asserting the idea that future generations have a right to a life-sustaining climate system. Here in Hawaii, the legal basis for that idea is the constitution, which provides a right to a clean and healthful environment. It is also based on something called public trust doctrine, also found in Hawaii’s constitution. The doctrine states that all natural resources – such as the atmosphere – are held in trust for the benefit of present and future generations of the public. This is a powerful legal principle that has roots in Kingdom of Hawaii law. The transportation sector was targeted in the Navahine lawsuit because greenhouse gas emissions are a growing part of Hawaii’s emissions.
Earlier this summer, Governor Green and HDOT Director Ed Sniffen agreed to settle with the youth plaintiffs by agreeing on tangible benchmarks and a plan to catalyze decarbonization for transportation. The benchmarks include, over roughly the next year, preparing a plan to reduce greenhouse emissions sufficient to meet the stateʻs existing 2045 target. Over the next five years the state will work with counties to complete pedestrian, bicycle and transit networks to make them more accessible and cleaner. The state also committed $40 million to expanding public electric vehicle charging stations by 2030, and establishing a volunteer youth advisory group to help guide these transformative changes
Q. Why is the settlement important?
It is the first of these cases in the world to specifically target carbon pollution from the transportation sector (asking that HDOT prepare a plan to support decarbonizing transportation systems) and the first youth atmospheric trust case in the U.S. to reach a final resolution.
Q. Why did HDOT settle the case?
When they first filed the complaint, the youth plaintiffs asked for a ruling that there is a constitutional right to a life-sustaining climate system. Subsequently, in the Hu Honua case concerning electricity emissions and a proposed power plant on the Big Island, the Hawaii Supreme Court ruled exactly as the youth plaintiffs had asked. The youth’s transportation trial was scheduled for June and the plaintiffs had a strong legal and factual case. Also, it is the right thing to do. The youth plaintiffs were clearly making a case based on the public interest, on a topic where their lives and livelihoods are threatened but they lack political power to protect themselves. It was a bad look when the youth plaintiffs were deposed aggressively by state lawyers hired from the mainland, and an equally bad look when the state submitted testimony essentially disclaiming any responsibility for reducing our carbon pollution (arguing that Hawaii is too small to matter).
Q. Is Hawaii too small to matter? Will the settlement make any difference?
When Hawaii passed its 100% renewable electricity law in 2015, people said the same thing. But within a few years roughly two dozen other states and territories adopted similar laws – sometimes with express credit given to Hawaii’s leadership. Today, roughly half of all U.S. residents live in places that have committed to decarbonizing the electricity system. Hawaii was clearly a leader on electricity policy, and the settlement means that it can become a leader in the next phase of climate solutions – reducing transportation emissions.
Q. Can Hawaii impact federal law? It seems that the U.S. federal government is so politically polarized that it prevents productive discussions on solving the climate crisis – unlike what is being done in Hawaii.
The Navahine settlement built on an ecosystem of increasingly effective climate and energy law here in Hawaii, including the recent series of decisions by the Hawaii Supreme Court affirming that we each have a right to a climate system that is not destabilized beyond repair by carbon pollution. Justice Eddins, for example, used powerful language in rejecting the Hu Honua powerplant – “yesterday’s good enough has become today’s unacceptable.” Other courts are sure to take notice. The Montana Supreme Court, for example, is considering another climate case – where youth plaintiffs succeeded at trial in demonstrating that their right to a livable climate system was being denied by a law that forbid Montana officials from even considering climate impacts when making policy decisions. Some federal judges are taking this same approach – recognizing the importance of solving the climate crisis, that the law has played a role in making it possible to pollute the atmosphere without consequence, and that the law has a role in fixing that problem. Other federal judges have acknowledged that climate change is a big problem but have ruled that it is such a big problem that the courts cannot play any role in solving it. Hawaii – and the Navahine settlement – are busting that myth of a helpless legal system.
Q. In the last 2 years, the United States Supreme Court has issued rulings that have significantly impaired the Environmental Protection Agency’s ability to limit air and water pollution, regulate the use of toxic chemicals, and reduce greenhouse gases. Can you tell us more about this?
The recent ultra-conservative turn of the U.S. Supreme Court is difficult to justify from the perspective of legal precedent, and even harder to explain to law students. Many observers find that the only credible explanation is that the current conservative majority on the Court is comprised of activist judges who are making decisions based on their personal political, ideological, and religious preferences, rather than making decisions based on foundational principles such as precedent and stewarding the legitimacy of the judiciary. This has not been limited to environmental cases, but certainly the federal EPA has been attacked by the current court in a series of decisions that are untethered from reality of a healthful environment – e.g. concluding in W.V. v. EPA that the EPA cannot hold coal powerplants accountable for the cost of carbon pollution, concluding in the Sackett case that the EPA cannot prevent pollution into wetlands unless those wetlands have a visible surface connection to interstate waters (i.e. pretending that hydrological systems are only connected if that connection is visible), and overruling its longtime precedent on Chevron deference — concluding this summer in Loper Bright that judges, rather than technical experts who work for federal agencies, are best positioned to determine how those agencies can most effectively achieve the outcomes mandated by laws such as the Clean Air Act and Clean Water Act. In short, federal law is a mess on these issues right now. Many legal experts believe that the focus should be on ensuring that states continue to protect the public interest in the environment, and on so the recent news from Hawaii is promising.
Q. What happens next here in Hawaii?
The Hawaii Department of Transportation decarbonization plan for transportation systems will be important (although the state only controls some elements of the transportation system like roads and airports) by finally creating a plan it can help to lay a foundation upon which citizens and private enterprises can create more and more viable options for transportation that is cleaner and more affordable transportation than the current fossil fuel status quo. It can create new opportunities, for example, for local innovators like the companies paired with the Energy Excelerator – a technology and startup incubator right here in Hawaii that works on sustainable solutions. That transportation plan will depend, in large part, on a renewable electricity system that can support more electrified transportation options. So, the transition away from fossil fuels in electricity continues to be fundamental. This coordination is a good thing – Hawaiian Electric calculated a few years ago that each time a new electric vehicle comes online in Hawaiʻi, it actually reduces the cost of electricity for everyone (even those still driving fossil fuel vehicles). Combining our steady progress in recent years with these sorts of opportunities paints a promising picture.
It will also be important that we keep our eyes on these changes in the big picture, so that we don’t fall prey to misinformation – like the misinformation at the heart of the lawsuits filed by Honolulu and Maui counties against the oil industry for using deceptive tactics to market fossil fuels. The data is irrefutable — renewable energy is helping to stabilize and lower energy costs at the same time it is helping us be more responsible for our carbon emissions. And with the proliferation of rooftop solar systems and battery storage across each island, the transition is also making us more resilient to things like price spikes or other disruptions in the global oil markets.
Not all the news is good news, however. We have heard some recent concerning statements by Gov. Green suggesting that his administration would like Hawaii to sink billions in new fossil fuel systems by transitioning the old oil-burning power plants to liquefied natural gas. From one fossil fuel to another – like switching from cigars to cigarettes in the name of healthy lungs. This LNG idea is expensive and polluting, and it threatens to distract us from the progress being made on decarbonization.
Q. Given Hawaii’s progressive climate laws, would liquified natural gas (LNG) be allowed?
The laws specifically on electricity might allow for LNG on a short-term basis before 2045. But that creates a problem – fossil fuel infrastructure is long-lived. To pay it all off by 2045 would make it expensive. And unless federal law clamps down on how much LNG is leaked into the atmosphere before it would even reach Hawaii, it can be worse for the climate than coal. As we’ve discussed, the polarized state of the federal government makes it risky to rely on federal rules. The law would require our Hawaii energy regulators to look closely at these expenses and emissions. I find it hard to see a scenario where LNG could pass muster if it is looked at objectively. More broadly, the law calls for us to reach net-zero emissions – or better – for the
entire economy by 2045. Although this is a policy target rather than a law that binds any particular carbon emitter, it has influenced the Hawaii Supreme Court’s thinking in these climate cases, and it forms a basis for the Navahine settlement. Investing in new fossil fuels would push in the opposite direction back toward the status quo. So in my view, the answer is no – the law does not favor large investments in LNG.
To learn more about this subject, tune into this video podcast.
Disclaimer: this material is intended for informational purposes only and does not constitute legal advice. The law varies by jurisdiction and is constantly changing. For legal advice, you should consult a lawyer that can apply the appropriate law to the facts in your case.
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Publish date : 2024-08-26 08:59:00
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