How A Maui Solar Farm Reached An ‘Unprecedented’ Deal With Neighbors
Advocates say the agreement between a renewable energy company and a community group in West Maui could be a model for resolving disputes.
In September, the Hawaii Public Utilities Commission took the unusual step of ordering a solar farm developer and a community group to over a planned project to power more than 11,500 homes.
The West Maui Preservation Association had for a power purchase agreement with Maui Electric Co., setting in motion a contested case before the PUC.
The association listed a litany of concerns ranging from pollution and the protection of native plants to electricity price impacts, and said it wouldn’t support the project unless the developer addressed their issues.
Maui laws only require PUC approval for such projects, but the commission had approved the association’s request to intervene.
However, with the assistance of a retired Maui circuit court judge over two days in September, the two parties struck an amicable deal, unwinding the kind of tensions that all too often lead to disruptive protests or years of costly legal delays.
At the heart of the agreement is that has agreed to donate to West Maui community groups over the 25-year lifespan of the project, amounting to $55,000 per year.
Benefits packages are a common tool used by developers to win over community support. But it’s less common to include legal consequences for developers who fall short on fulfilling these pledges. Advocates said it could be a model for future disputes over clean-energy projects.
鈥淭his is a totally unprecedented thing 鈥 that there is now an enforceable community benefits package for an energy project in Hawaii,鈥 said Lance Collins, a Maui attorney who serves as a spokesman for the preservation association. “That means if they don’t do what they’ve agreed to do, we can take them to court and make them do it.”
On Friday, the PUC approved the agreement between MECO and Innergex.
Next the Maui Planning Commission will vet the solar farm for a special use permit required to develop the project on agricultural lands. Expected to come online in 2023, the solar farm would be built on former pineapple fields owned by Maui Land and Pineapple Co.
James Griffin, chairman of the PUC, said the situation marks the first time the commission has used mediation to resolve a contested case. He said he’s encouraged that a dispute that had been “so contentious” was resolved in less than 30 days.
It’s a signal, he said, that the PUC may wish to require more community outreach from developers earlier in the approval process.
“Mediation was the key step here,” said Griffin, adding that it could become a template for the PUC when dealing with contested cases over renewable energy projects.
“We didn’t exactly know how it was going to turn out,” he added. “When we held the hearing it seemed like the parties were pretty far apart and we hoped for the best, but they were able to come together to everyone’s benefit.”
In addition to funding for West Maui community groups, the WMPA brokered a prevailing wage for at least 80% of Kahana Solar鈥檚 non-supervisory workers and a pledge from the developer to try to hire locally before recruiting workers from outside the state.
As part of the deal, the developer also agreed to restore the solar farm site to its original condition at the project鈥檚 end.
The WMPA agreed to withdraw from the case, making it eligible for final PUC approval.
The final agreement, which builds on an initial framework laid out by Kahana Solar, is more detailed, setting out dollar amounts, funding recipients and timelines. It also has the legal teeth to hold the developer accountable to its promises. The WMPA could take the developer to court if it fails to fulfill the agreement.
鈥淚n most cases, (renewable energy project developers) don’t agree to do anything 鈥 that’s the problem,鈥 said Collins, who has represented opponents of the Na Pua Makani wind project in Kahuku on Oahu and the Paeahu Solar project in East Maui.
鈥淭hey just sort of have their marketing people say, ‘Well, we’ll give community benefits,’ but it鈥檚 not enforceable. It鈥檚 basically just on the scout鈥檚 honor of the developer that they鈥檙e going to follow through,” he added.
Collins said he’d like the PUC to make the community benefits package a standard part of its approval process, adding that it shouldn鈥檛 require a community group to hire attorneys and intervene in the process.
Innergex spokeswoman Myriam Bernede-Martin said the Canada-based company is happy with the agreement formed during mediation with the WMPA and stressed it reflects the community benefits package it originally proposed.
In addition to Kahana Solar, Innergex has three other solar energy project proposals pending in Hawaii, including that would power nearly 7,000 South Maui homes.
Nearby residents have opposed Paeahu Solar, expressing concerns about drainage and the proximity of the project to their homes. A group called Pono Power Coalition also has filed an appeal of the PUC’s decision to approve the project with the Hawaii Supreme Court. In that case, Collins is representing Pono Power Coalition.
Collins said the South Maui and West Maui solar projects present a good compare-and-contrast example of the same developer encountering community pushback with two different results, and the positive impact that mediation can have on disputes.
He pointed to aggressive local opposition to a controversial wind farm on Oahu鈥檚 North Shore that led to a months-long protest in 2019 and more than 200 arrests. The predominant complaint voiced by people who live near Na Pua Makani wind farm in Kahuku is that the 568-foot turbines are too big and too close to their homes.
Collins also is representing a community group that鈥檚 trying to persuade the Hawaii Supreme Court to strike down a plan that allows Na Pua Makani to kill about 51 endangered Hawaiian hoary bats over the course of 20 years.
Enshrining a community benefits agreement in the PUC project approval process, Collins said, could help prevent similar community conflicts from happening in the future.
鈥淭he PUC wants these projects to get built,” he said. “They don鈥檛 want them stuck in years and years of protracted court litigation.鈥
Civil Beat’s coverage of Maui County is supported in part by a grant from the Nuestro Futuro Foundation.
