In re: Hawai'i Electric Light Company, Inc.

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Electronically Filed
Supreme Court
SCOT-XX-XXXXXXX
24-MAY-2021
09:13 AM
Dkt. 289 OP

IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

---o0o---

In the Matter of the Application of

HAWAI‘I ELECTRIC LIGHT COMPANY, INC.

For Approval of a Power Purchase Agreement for Renewable
Dispatchable Firm Energy and Capacity.

SCOT-XX-XXXXXXX

APPEAL FROM THE PUBLIC UTILITIES COMMISSION
(Docket No. 2017-0122)

MAY 24, 2021

RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.;
WITH WILSON, J., ALSO CONCURRING SEPARATELY

OPINION OF THE COURT BY EDDINS, J.

Appellant Hu Honua Bioenergy, LLC (“Hu Honua”) appeals

the Public Utilities Commission’s (“PUC”) Order No. 37205, which

“denied” a competitive bidding waiver to Hawai‘i Electric Light

Company, Inc. (“HELCO”). Hu Honua also appeals the PUC’s Order

No. 37306, which denied Hu Honua’s request for reconsideration

of Order No. 37205. Because both Order No. 37205 and Order No.
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37306 spring from a misreading of the holding in Matter of

Hawai‘i Elec. Light Co., Inc., 145 Hawai‘i 1, 445 P.3d 673 (2019)

(“HELCO I”), we vacate them and remand this case to the PUC for

further proceedings consistent with this opinion and the court’s

instructions in HELCO I.

I. BACKGROUND

The PUC oversees and regulates public utilities in

Hawai‘i. Under the PUC’s Competitive Bidding Framework, HELCO’s

acquisition of new renewable energy generation sources typically

occurs through competitive bidding; normally, only contracts

identified through the competitive bidding process are presented

to the PUC for approval. In 2017, however, the PUC granted

HELCO a waiver from competitive bidding (the “2017 waiver”) for

a proposed power purchase agreement HELCO wanted to enter with

Hu Honua (the “Amended PPA”). Because of the 2017 waiver, the

PUC considered the merits of the Amended PPA even though it had

not been selected through competitive bidding. The 2017 waiver

was then issued alongside the PUC’s approval of the Amended PPA

in a single decision and order (the “2017 D&O”).

The community and environmental group Life of the Land

(“LOL”) directly appealed the PUC’s 2017 D&O to this court. It

argued that the PUC’s consideration of the Amended PPA failed to

consider greenhouse gas emissions as required by Hawaiʻi Revised

Statutes (“HRS”) § 269-6(b). It also argued that the procedures

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the PUC used and the participation status it afforded LOL denied

LOL the due process necessary to protect its constitutional

right to a clean and healthful environment.

In HELCO I, we agreed with LOL. We vacated the 2017

D&O and remanded the case. We instructed: “On remand, the PUC

shall give explicit consideration to the reduction of

[greenhouse gas] emissions in determining whether to approve the

Amended PPA, and make the findings necessary for this court to

determine whether the PUC satisfied its obligations under HRS §

269-6(b).” HELCO I, 145 Hawai‘i at 25, 445 P.3d at 697. The

last line of our opinion read: “The PUC’s 2017 D&O is therefore

vacated and this case is remanded to the PUC for proceedings

consistent with this opinion.” Id. at 28, 445 P.3d at 700.

On remand, the PUC reopened the 2017 docket.

Operating under the belief that HELCO I nullified the 2017

waiver by vacating “the 2017 D&O,” the PUC solicited testimony,

evidence, and briefing from the parties on several issues

including whether it should reissue HELCO a competitive bidding

waiver. Eventually, the PUC issued Order No. 37205, denying

HELCO’s request for a waiver. Because it denied HELCO a waiver

from the competitive bidding framework, the PUC declined to hold

an evidentiary hearing or consider the merits of the Amended

PPA. Hu Honua moved for reconsideration. The PUC rejected that

motion in Order No. 37306.

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In Order No. 37306, the PUC explained that its re-

evaluation of HELCO’s waiver request was unavoidable because

HELCO I had vacated the 2017 waiver:

In light of the Court’s ruling vacating the 2017 D&O in its
entirety, on remand, the Commission was required to “redo”
the proceeding to ensure that LOL was provided meaningful
opportunity to be heard on the Project’s impacts on its
members’ constitutional rights under HRS Chapter 269.

The compulsory “redo,” the PUC stated, covered the waiver

determination since “[t]he issue of the waiver, along with all

the other findings and conclusions in the 2017 D&O, were vacated

by the Court’s decision [in HELCO I].” 1

On appeal, Hu Honua contests the PUC’s understanding

of HELCO I’s effect on the 2017 waiver. It asserts that HELCO I

vacated only the PUC’s 2017 approval of the Amended PPA.

Because HELCO I left the 2017 waiver intact, Hu Honua argues,

the HELCO I remand did not require the PUC to re-open the waiver

issue. For the reasons outlined below, we agree with Hu Honua:

HELCO I did not vacate the 2017 waiver and, by extension, did not

require the PUC to revisit the threshold waiver issue.

1
In its briefing before this court, the PUC similarly stressed that because
HELCO I “nullified” the 2017 waiver “along with the rest of the 2017 D&O,”
the Commission was required to “start again on remand, as if the 2017 D&O had
never been rendered, including with respect to HELCO’s request for a waiver.”
And again, during oral argument, the PUC advanced the same explanation of why
it had to revisit the waiver issue on remand:

[S]o this Court’s HELCO I opinion specifically said that
the Commission . . . was to conduct proceedings in
accordance with this Court’s opinion and because this Court
completely vacated the Commission’s decision, in its
entirety, with respect, there was no waiver left on the
record.

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II. DISCUSSION

On remand, a trial court must closely adhere to the

true intent and meaning of the appellate court’s mandate. See

State v. Lincoln, 72 Haw. 480, 485, 825 P.2d 64, 68 (1992)

(quoting 5 Am.Jur.2d Appeal and Error § 991 (1962 & Supp.1991)

(footnote omitted)). Likewise, administrative agencies are

bound by reviewing courts’ remand orders. See Fed. Power Comm’n

v. Pac. Power & Light Co., 307 U.S. 156, 160 (1939).

The “true intent and meaning” of a reviewing court’s

mandate is not to be found in a solitary word or

decontextualized phrase, but rather in the opinion, as a whole,

read in conjunction with the judgment and interpreted in light

of the case’s procedural history and context. See Frost v.

Liberty Mut. Ins. Co., 813 S.W.2d 302, 305 (Mo. 1991)(“It is

well settled that the mandate is not to be read and applied in a

vacuum. The opinion is part of the mandate and must be used to

interpret the mandate . . . .”) (cleaned up). 2

The first sentence of our opinion in HELCO I describes

the case as arising from “the [PUC’s] approval of an [Amended

PPA] between [HELCO] and Hu Honua Bioenergy, LLC.” And all of

2
The “cleaned up” parenthetical signals that extraneous material such as
internal quotation marks, citations, and alterations have been excised from a
quote, and that these removals have not changed the meaning of the quoted
text. See, e.g., Brownback v. King, 141 S.Ct. 740, 748 (2021) (using
“(cleaned up)”); Andrade v. Cty. of Hawaiʻi, 145 Hawaiʻi 265, 269, 451 P.3d 1,
5 (App. 2019) (same); United States v. Reyes, 866 F.3d 316, 321 (5th Cir.
2017) (same).

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the analysis and discussion that follow reflect our exclusive

concern with the PUC’s consideration of the Amended PPA and

LOL’s due process rights. No party in HELCO I made an argument

about the 2017 waiver. There was no mention of the 2017 waiver

in HELCO I. Likewise, our judgment in HELCO I made clear that

this court was concerned with the 2017 D&O only to the extent it

addressed the Amended PPA. The judgment read:

Pursuant to the opinion of the Supreme Court of the State
of Hawai‘i entered on May 10, 2019, the Public Utilities
Commission’s (PUC) Decision and Order No. 34726 filed on
July 28, 2017, approving the Amended Power Purchase
Agreement, is vacated and this case is remanded to the PUC
for proceedings consistent with the opinion.

(Emphasis added.)

The PUC’s interpretation of HELCO I’s implications for

the 2017 waiver rests on a single phrase in the opinion’s last

sentence: “[t]he PUC’s 2017 D&O is therefore vacated . . . .”

The PUC reads these seven words as vacating the 2017 waiver,

which was issued as part of the 2017 D&O. But this

interpretation only works if everything else in the HELCO I

opinion and the language of the judgment is ignored. This

blinkered approach is unreasonable given that the scope of

remand is determined “not by formula, but by inference from the

opinion as a whole.” United States v. Parker, 101 F.3d 527, 528

(7th Cir. 1996).

HELCO I focused on ensuring that the PUC complied with

its statutory and constitutional obligations and respected LOL’s

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due process rights in connection with the PUC’s consideration of

the Amended PPA. So, it was unreasonable for the PUC to view

HELCO I as requiring that the PUC potentially thwart the need for

that consideration by revisiting the threshold waiver issue.

This is particularly true given that within the body of the

opinion, the court explicitly delimited the purpose of the

remand. “On remand,” the court stated, “the PUC shall give

explicit consideration to the reduction of GHG emissions in

determining whether to approve the Amended PPA, and make the

findings necessary for this court to determine whether the PUC

satisfied its obligations under HRS § 269-6(b).” HELCO I at 25,

445 P.3d at 697. These remand instructions circumscribed the

scope of the attendant vacatur.

The PUC should have examined HELCO I’s final line “in

conjunction with the opinion of the appellate tribunal and the

particular facts, circumstances, and procedural history of the

case . . . ” SugarHouse HSP Gaming, L.P. v. Pennsylvania Gaming

Control Bd., 162 A.3d 353, 371 (Pa. 2017). Had it done so, it

would have understood that HELCO I did not disturb, modify, or

vacate the 2017 waiver. The court used the “2017 D&O” in the

final sentence of the opinion as a synecdoche for those parts of

the D&O that were implicated by the court’s discussion of the

case on appeal.

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Because HELCO I had no impact on the 2017 waiver, the

waiver was still in effect when the PUC re-opened Docket No.

2017-0122. It was still in effect when the PUC issued Order No.

37205. And it was still in effect when the PUC denied Hu

Honua’s motion for reconsideration. 3

The PUC’s Order Nos. 37205 and 37306 are predicated,

both logically and legally, on the PUC’s misreading of HELCO I.

They flow from the faulty premise that HELCO I nullified the

2017 waiver when, in fact, the HELCO I opinion presumed the

existence of that very same waiver. The PUC’s wrong conclusion

of law concerning HELCO I’s true intent and meaning is the

antecedent of the two orders. It is the orders’ but-for cause

and as it falls, so must they too.

III. CONCLUSION

We vacate PUC Order Nos. 37205 and 37306.

As a result, the parties are fixed in the same

position they were in following HELCO I: the PUC’s 2017 approval

of the Amended PPA remains vacated, the 2017 waiver remains

valid and in force, and the PUC, in considering the Amended PPA,

remains obligated to follow the instructions we provided in

HELCO I. We thus remand this case to the PUC for a hearing on

the Amended PPA that “complies with procedural due process” as

3
We express no opinion as to the PUC’s discretion, if any, to address the
2017 waiver; we merely hold that HELCO I and its remand instructions did not
affect the waiver.

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well as the requirements of HRS Chapter 269. The PUC’s post-

remand hearing:

must afford LOL an opportunity to meaningfully address the
impacts of approving the Amended PPA on LOL’s members’
right to a clean and healthful environment, as defined by
HRS Chapter 269. The hearing must also include express
consideration of GHG emissions that would result from
approving the Amended PPA, whether the cost of energy under
the Amended PPA is reasonable in light of the potential for
GHG emissions, and whether the terms of the Amended PPA are
prudent and in the public interest, in light of its
potential hidden and long-term consequences.

HELCO I at 26, 445 P.3d at 698.

The PUC shall re-open Docket No. 2017-0122 for

proceedings consistent with this opinion and HELCO I forthwith.

Bruce D. Voss, /s/ Mark E. Recktenwald
(John D. Ferry III, Dean T.
Yamamoto, Wil K. Yamamoto, and /s/ Paula A. Nakayama
Bradley S. Dixon on the briefs)
/s/ Sabrina S. McKenna
for Hu Honua Bioenergy, LLC
/s/ Michael D. Wilson
Joseph A. Stewart,
(Marissa L.L. Owens, David M. /s/ Todd W. Eddins
Louie, Bruce Nakamura, and Aaron
R. Mun on the briefs)
for Hawaiʻi Electric Light
Company, Inc.

Kimberly T. Guidry,
(Kalikoʻonalani D. Fernandes on
the briefs)
for Public Utilities Commission

Lance D. Collins,
(Bianca K. Isaki on the briefs)
for Life of the Land

Sandra-Ann Y.H. Wong,
for Tawhiri Power LLC

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