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In re Application of Hawai'i Electric Light Company, Inc.

Supreme Court of Hawaii

May 10, 2019

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.

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

          Lance D. Collins for appellant Clyde J. Wadsworth (Kaliko'onalani D. Fernandes with him on the brief) for appellee PUC

          Margery S. Bronster (Rex Y. Fujichaku and Kelly A. Higa with her on the brief) for appellee Hu Honua Bioenergy, LLC

          Joseph A. Stewart David M. Louie and Aaron R. Mun with him on the brief) for appellees HECO and HELCO

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

          OPINION

          RECKTENWALD, C.J.

         This case arises from the Public Utilities Commission's approval of an amended power purchase agreement (Amended PPA) between Hawai'i Electric Light Company, Inc. (HELCO) and Hu Honua Bioenergy, LLC. Pursuant to the Amended PPA, Hu Honua would construct and operate a biomass-fueled energy production facility, and HELCO would purchase energy from the facility.

         Life of the Land (LOL), an environmental nonprofit organization, sought to intervene as a party in the PUC's proceeding in order to address the environmental impacts of the proposed biomass facility. The PUC denied LOL full party status, but granted LOL limited participation in the proceeding. The PUC ultimately approved the Amended PPA without holding a hearing.

         LOL directly appealed the PUC s order granting it limited participation in the proceeding, as well as the Decision and Order approving the Amended PPA (2017 D&O), to this court. LOL argues that the PUC: (1) failed to explicitly consider greenhouse gas (GHG) emissions in determining whether to approve the Amended PPA, as required by state law; (2) denied LOL due process to protect its interest in a clean and healthful environment by restricting its participation in the proceeding; and (3) abused its discretion and violated due process by denying LOL full party status in the proceeding. In addition to disputing these allegations, the PUC, HELCO, and Hu Honua contest this court's jurisdiction over the matter.

         As a threshold matter, we hold that this court has jurisdiction to consider LOL's appeal. We further hold that the PUC erred by failing to explicitly consider the reduction of GHG emissions in approving the Amended PPA, as required by statute, and that the PUC denied LOL due process with respect to the opportunity to be heard regarding the impacts that the Amended PPA would have on LOL's right to a clean and healthful environment. Finally, we need not resolve whether the PUC abused its discretion or deprived LOL of due process by denying it full party status in the proceeding.

         Accordingly, we vacate the 2017 D&O and remand this matter to the PUC for further proceedings.

         I. BACKGROUND

         A. PUC Proceedings

         1. 2012 Docket

         In 2012, HELCO submitted an application to the PUC seeking approval of a power purchase agreement (Original PPA) with Hu Honua. Pursuant to the Original PPA, Hu Honua agreed to refurbish an existing biomass power plant located on the Hamakua Coast in Pepe'ekeo, Hawai'i, to allow it to utilize harvested timber and other "woody biomass" as a fuel source. HELCO agreed to purchase energy from the facility over the Original PPA's 20-year term.

         LOL filed a Motion to Intervene as a party-intervenor in the PUC proceeding (2012 Docket), pursuant to Hawai'i Administrative Rules (HAR) § 6-61-55 (effective 1992-2018), [1] In its motion, LOL explained that it is a Hawai'i-based nonprofit organization comprised of members who live, work, and recreate in Hawai'i. LOL highlighted its environmental interests and explained that the externalities associated with the use of biofuels for energy production "[can] be very harmful to [its] interests." LOL also stated it "has developed great expertise in biofuels" and has demonstrated its expertise in several regulatory proceedings regarding biofuels.

         More specifically, with regard to the proposed Hu Honua facility, LOL stated it had "several concerns, including the fuel source, the comparative cost, . . . [and whether] this proposed facility will cut into the utilities['] purchase of energy from existing and/or planned wind and solar farms." Finally, LOL stated it had "unique environmental interests different from the general public," and assured the PUC that its intent was "not to disrupt the process[, ] but ... to insure that [LOL's] members and our local environmental communities have a voice in this process."

         The PUC found that the "concerns raised in [LOL's] Motion to Intervene provide[d] insufficient basis to justify full intervention[.]" However, it also found that "LOL's concerns regarding the proposed project's impact on existing renewable projects on the Big Island, and the supply and pricing analysis between the biomass resources delineated in the [Original] PPA [were] sufficient to justify LOL having limited participant status in [the 2012 Docket], pursuant to HAR § 6-61-56." Accordingly, the PUC denied LOL's motion, but granted it "limited participant status" sua sponte, allowing it to participate with respect to: (1) whether the energy price components properly reflect the cost of biomass fuel supply; and (2) whether HELCO's purchase power arrangements under the Original PPA are prudent and in the public interest.

         The PUC ultimately approved the Original PPA, but HELCO subsequently terminated the agreement. HELCO and Hu Honua agreed to amend the Original PPA, giving rise to the Amended PPA at issue in the instant case.

         2. 2017 Docket

         In 2017, HELCO filed an application with the PUC, seeking approval of the Amended PPA. The PUC entered Order No. 34554, opening Docket No. 2017-0122 (2017 Docket) to address HELCO's request. The order also granted LOL "conditional participant status" in the proceeding and stated it would reevaluate LOL's status and establish the scope of LOL's participation following its final determination of the issues governing the 2017 Docket.

         LOL filed exhibits in response to Order No. 34554, which included an overview of the "agricultural expertise" of Henry Curtis, LOL's Vice President of Consumer Issues. Curtis explained that he had "stayed with friends living in Hamakua, stayed at vacation sites in Hamakua, explored Hamakua, and made several trips to the Hu Honua site, driving around three sides of the site."[2] In support of his agricultural expertise, Curtis also cited to a chapter that he authored in "The Value of Hawai'i: Knowing the Past, Shaping the Future," which cites runoff into the ocean as one of the primary adverse environmental impacts associated with the use of biofuels for energy production.

         The PUC entered Order No. 34597, establishing a procedural schedule, statement of the issues, and scope of participation for participants. The PUC permitted LOL to participate in the proceeding, but limited the scope of its participation to the same two issues that it participated on in the 2012 Docket:

2. a. i. Whether the energy price components in the Amended and Restated PPA properly reflect the cost of biomass fuel supply.
2. b. Whether HELCO's purchase power arrangements under the Amended and Restated PPA are prudent and in the public interest.
Specifically, the PUC found that:
Because the question of whether HELCO's purchase power arrangements under the Amended and Restated PPA are prudent and in the public interest continues to be an issue in this proceeding, as it was in Docket No. 2012-0212, the commission finds it appropriate to maintain LOL, Tawhiri, and HEP's participant status on this issue (Issue 2.b., above).[3] Further, while not explicitly stated, the question of whether the energy price components properly reflect the cost of biomass fuel supply is a consideration when determining whether the purchased power costs to be paid by HELCO pursuant to the Amended and Restated PPA are reasonable (Issue 2.a., above). Accordingly, the commission finds it appropriate to maintain LOL's participant status on the specific sub-issue of whether the energy price components properly reflect the cost of biomass fuel supply (Issue 2.a.i., above).

(Emphasis added).

         a. Motion to Upgrade Status

         LOL filed a Motion to Upgrade Status, requesting that the PUC allow it to intervene in the 2017 Docket as a party.[4] In support of its Motion to Upgrade Status, LOL stressed the fact that the PUC had already "grant[ed] LOL participant status based on [its] interests in the pending matter." LOL also cited previous PUC proceedings in which it was admitted as a party, and stated that: (1) its Board of Directors "approved continuing to intervene in energy dockets as a means of promoting sustainable policies"; (2) LOL's members "are very deeply concerned about climate change, biodiversity, and the spread of invasive species"; (3) the only way to protect LOL's interest is by accessing "classified documents dealing with externalities"; (4) there are no other means available to protect LOL's interests; (5) the Consumer Advocate does not represent LOL's interests because it lacks the expertise to understand externalities;[5] (6) the agricultural expertise of LOL's vice president will assist in developing an evidentiary record; and (7) while the Consumer Advocate represents the interests of the general public, "LOL is concerned with a wider lens that encompasses externalities including social justice, environmental justice, climate justice, and [GHG] impacts." In addition, LOL specifically expressed concern regarding the externalities associated with "acquiring bioenergy crops" from a specific area of the Big Island that already serves as a source for another biofuel facility.

         The PUC issued Order No. 34651, denying LOL's motion. The PUC cited HAR § 6-61-55, specifically noting subsection (d), [6]and stated that "intervention is not a guaranteed right of a movant, but is a matter resting within the sound discretion of the commission, so long as that discretion is not exercised arbitrarily or capriciously." It also cited HAR § 6-61-56 (effective 1992-2018), [7] which sets forth the requirements for participation without intervention. It stated:

As was the case in [the 2012 Docket], upon review of the record, the commission continues to find that the concerns raised in LOL's Motion, which are identical to or mirror the concerns raised by LOL in its Motion to Intervene in [the 2012 Docket], provide insufficient basis to justify full intervention in this proceeding. The commission finds that LOL has failed to demonstrate any additional interest or expertise sufficient to justify a change in its limited participant status granted on a conditional basis in Order No. 34554, and permanently established pursuant to Order No. 34597.

         b. Information Requests

         LOL filed several Information Requests (IRs), seeking information from HELCO, Hu Honua, and the Consumer Advocate regarding GHG emissions and other potential adverse environmental impacts of the Hu Honua facility. In its response to LOL's IRs, HELCO acknowledged that GHGs would be emitted by equipment used to raze and transport trees, but stated that it had not quantified the amount of emissions. HELCO asserted that although carbon would be released into the atmosphere upon the combustion of trees in the facility, it would be recaptured upon the regrowth of the trees. In response to at least one of the IRs that LOL submitted to HELCO, HELCO objected and refused to respond, arguing that the information sought was "not relevant to and [was] outside the scope of LOL's authorized scope of limited participation[.]"

         One of the IRs that LOL submitted to Hu Honua posed several questions regarding the quantity of wastewater that would be produced by the facility, the means by which it would be produced and managed, and the steps that would be taken to monitor and prevent ocean contamination. Hu Honua objected to this IR, as well as those focused on GHG emissions and climate change, stating that they were "not relevant or material to Issue Nos. 2.a.i or 2.b, which [were] the only issues for which the Commission authorized LOL's participation."

         The Consumer Advocate responded to LOL that it had not completed an analysis of the impact the project would have on GHG emissions, and that any analysis should be comprehensive, including GHGs resulting from harvesting and transporting the feedstock. The Consumer Advocate further stated that it had not evaluated the need for a consultant to review GHGs and climate change in the instant proceeding.

         c. Statements of Position

         In its Statement of Position, LOL argued that Hu Honua's proposed facility was not in the public interest. LOL further argued that Hu Honua's proposal failed to fully address climate change and the environmental impacts of the proposed operations. LOL stated:

Hu Honua plans to chop down existing trees for seven years, and then to rely on a rotational system of growing new trees and then chopping them down. Omitting any discussion of the fossil fuels used in the mechanization of growing, chopping, chipping, and transport, Hu Honua alleges that this operation is carbon neutral.

         LOL also argued that the pricing of Hu Honua's proposal was not in the public interest when compared to lower-priced solar-based electricity proposals previously approved by the PUC.

         In its Reply Statement of Position, Hu Honua argued that its facility "will make a significant contribution to the State's [Renewable Portfolio Standards (RPS), ]" noting that "HELCO estimates that Hu Honua will increase RPS levels by 11% over the life of the PPA, and avoid the emission of hundreds of thousands of tons of C02." Hu Honua asserted that "the estimated emissions due to transportation of fuel to the plant pale in comparison to the emissions reductions that will result from the displacement of fossil fuel[.]" Hu Honua further stated that "biomass plants, like wind and solar plants, are renewable and carbon neutral to a reasonable approximation, and are therefore deemed fully renewable by applicable state law."

         d. 2017 Decision and Order

         Without holding a hearing, the PUC entered the 2017 D&O approving the Amended PPA. The PUC noted that comments in support of the Project focused on issues including the fulfillment of the RPS targets and energy resource self-reliance, while comments in opposition focused on issues including potential adverse environmental impacts, an expected rise in GHG emissions, and general objections to biomass as a fuel resource.

         The PUC then summarized each party's position, citing HELCO's claims that approval of the Amended PPA would be reasonable due to, inter alia, the project's contribution to the State's RPS goals, the fact that the contract price for the Amended PPA is de-linked from fossil fuel pricing, and the assertion that "renewable energy provided by the Project could potentially save approximately 15, 700 barrels of fuel per year, which over the term of the [Amended] PPA amounts to approximately 329, 000 barrels of fuel oil saved." The PUC also noted the following:

HELCO asserted that the totality of circumstances should be considered when reviewing whether the purchased power costs are reasonable, . . . including governmental policies and objectives, contributions towards RPS, reducing dependency on fossil fuels, decreased price volatility, de-linking energy costs from fossil fuel pricing, realization of tax incentives, and community benefits.
LOL asserted that "[t]he cost of biofuel includes both financial and non-financial components, which Hu Honua has failed to adequately address." LOL asserted that the "non-financial components" include impacts on climate change and endangered species that were not explicitly quantified or monetized in HELCO's benefit/cost ratio.
LOL is not in favor of commission approval of the [Amended] PPA, but focused its rationale on concerns outside of the scope of its limited participation, namely climate change and comparative pricing with other forms of energy.

(Emphases added).

         It appears the PUC adopted HELCO's analysis of the biomass facility's economic and customer bill impact under the Amended PPA, stating, "[p]er HELCO, . . . the Project provides significant renewable energy-related benefits, primarily through its firm capacity and contribution to the State's RPS goals. For the island of Hawaii, with the Project, the RPS goal levels increase by approximately 11% over the 30-year life of the Project." The PUC also made the following findings and conclusions:

[T]he commission finds that the Project will . . . add to the diversity of HELCO's existing portfolio of renewable energy resources.
Consistent with [Hawai'i Revised Statutes (HRS)] § 269-27.2(c)[(Supp. 2016)], the proposed pricing structure is delinked from fossil fuel pricing.
[I]t appears that the addition of the Project may primarily displace fossil fuel generation resources. Accordingly, the commission anticipates that, based on the representations made in HELCO's [Power Supply Improvement Plan], this Project will accelerate the retirement of fossil fuel plants[.]

(Emphases added).

         The PUC addressed, inter alia, the following two issues: (2.a.i) whether the energy price components in the Amended PPA properly reflect the cost of biomass fuel supply; and (2.b) whether HELCO's purchase power arrangements under the Amended PPA are prudent and in the public interest. The PUC found the purchased power costs to be reasonable and that the arrangements under the Amended PPA were prudent and in the public interest. Accordingly, the PUC approved the Amended PPA, concluding that:

HELCO has met its burden of proof in support of its request for the commission to approve the [Amended] PPA. The purchased power costs and arrangements set forth in the [Amended] PPA appear reasonable, prudent, in the public interest, and consistent with HRS chapter 269 in general, and HRS § 269-27.2(c), in particular. While the commission, in this instance, finds the pricing to be reasonable, the commission makes clear that its decision to approve the [Amended] PPA is not based solely on pricing, but includes other factors such as the State's need to limit its dependence on fossil fuels and mitigate against volatility in oil pricing.

(Emphases added).

         B. Direct Appeal

         LOL directly appealed the PUC s order denying LOL's Motion to Upgrade Status and the 2017 D&O to this court. See HRS § 269-15.51 (Supp. 2018) and HRS § 91-14 (2012 & Supp. 2018). LOL presents three points of error:[8] (1) the PUC was required, under HRS § 269-6(b) (Supp. 2016), to explicitly consider GHG emissions in determining whether the costs of the Amended PPA were reasonable, but failed to do so; (2) the PUC denied LOL due process to protect its right to a clean and healthful environment, as defined by HRS Chapter 269, by restricting its participation in the PUC proceedings; and (3) the PUC erred in denying LOL's Motion to Upgrade Status from "participant" to "intervenor. "

         II. STANDARDS OF REVIEW

         A. Jurisdiction

         "The existence of jurisdiction is a question of law that [the appellate court reviews] de novo under the right/wrong standard." Captain Andy's Sailing, Inc., v. Dep't of Land & Nat. Res., 113 Hawai'i 184, 192, 150 P.3d 833, 841 (2006) (internal quotation marks and citation omitted).

         B. Direct Appeal

         Because this is a direct appeal from a decision of the PUC, the standard of review, as set forth in HRS § 91-14, is as follows:

Upon review of the record, the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

HRS § 91-14(g).

Conclusions of law are reviewed de novo, pursuant to subsections (1), (2) and (4); questions regarding procedural defects are reviewable under subsection (3); findings of fact (FOF) are reviewable under the clearly erroneous standard, pursuant to subsection (5), and an agency's exercise of discretion is reviewed under the arbitrary and capricious standard, pursuant to subsection (6). Save Diamond Head Waters LLC, 121 Hawai'i [16, ] 24, 211 P.3d [74, ] 82 [(2009)]. Mixed questions of law and fact are" 'reviewed under the clearly erroneous standard because the conclusion is dependent upon the facts and circumstances of the particular case.'" Id. at 25, 211 P.3d at 83 (quoting Del Monte Fresh Produce (Haw.), Inc. v. Int'l Longshore & Warehouse Union, 112 Hawai'i 489, 499, 146 P.3d 1066, 1076 (2006)) .
A court reviewing the decision of an agency should ensure that the "agency . . . make its findings reasonably clear. The parties and the court should not be left to guess . . . the precise finding of the agency." In re Water Use Permit Applications, 94 Hawai'i 97, 157, 9 P.3d 409, 469 (2000) ("Waiahole I") (quoting In re Kauai Elec. Div. of Citizens Utilities Co., 60 Haw. 166, 183, 590 P.2d 524, 537 (1978)). An agency's findings should be "sufficient to allow the reviewing court to track the steps by which the agency reached its decision." Kilauea Neighborhood Ass'n v. Land Use Comm'n, 7 Haw.App. 227, 230, 751 P.2d 1031, 1034 (1988) [; see] also In re Wai'ola O Moloka'i, Inc., 103 Hawai'i 401, 432, 83 P.3d 664, 695 (2004) (explaining that any presumption of validity, given to an agency's decision, "presupposes that the agency has grounded its decision in reasonably clear" findings of fact and conclusions of law).

Kauai Springs, Inc. v. Planning Comm'n of Cty. of Kauai, 133 Hawai'i 141, 164, 324 P.3d 951, 974 (2014).

         C. Constitutional Law

         "We review questions of constitutional law de novo, under the right/wrong standard." Jou v. Dai-Tokyo Royal State Ins. Co., 116 Hawai'i 159, 164-65, 172 P.3d 471, 476-77 (2007) (quoting Onaka v. Onaka, 112 Hawai'i 374, 378, 146 P.3d 89, 93 (2006)) (internal quotation marks omitted).

         III. DISCUSSION

         A. Jurisdiction

         This court must determine, as a threshold matter, whether it has jurisdiction over LOL's appeal. Pub. Access Shoreline Haw, by Rothstein v. Haw. Cty. Planning Comm'n by Fujimoto, 79 Hawai'i 425, 431, 903 P.2d 1246, 1252 (1995) (quoting Pele Def. Fund v. Puna Geothermal Venture, 77 Hawai'i 64, 67, 881 P.2d 1210, 1213 (1994)). Hu Honua and HELCO argue that this court lacks jurisdiction because LOL's appeal of the PUC's 2017 D&O constitutes an improper collateral attack on the PUC's 2012 D&O. Additionally, Hu Honua, HELCO, and the PUC argue that this court lacks jurisdiction because LOL's appeal does not arise from a contested case and LOL failed to comply with the applicable agency rules by not requesting a contested case hearing.

         As set forth below, LOL's appeal is not a collateral attack on the PUC's 2012 D&O. LOL has appealed the PUC's 2017 D&O to directly challenge its validity, rather than to indirectly impeach the validity of the PUC's 2012 D&O. Furthermore, the requirements for judicial review under HRS § 91-14(a) - a contested case hearing, finality, and compliance with agency rules - have been satisfied. The PUC's 2017 Docket was a contested case hearing because a hearing was required by constitutional due process in order to consider the impacts of approving the Amended PPA on LOL's right to a clean and healthful environment, as defined by HRS Chapter 269, and such a hearing would have determined the rights, duties, and privileges of HELCO. It is undisputed that the 2017 D&O is a final decision of the PUC. Finally, LOL followed the applicable agency rules, as it was involved in the contested case as a participant in the 2017 Docket and the PUC's administrative rules do not require a request for a contested case hearing as a prerequisite to judicial review. We therefore have jurisdiction to consider the merits of LOL's appeal.

         1. Collateral Attack

         "A collateral attack[, as opposed to a direct attack, ] is an attempt to impeach a judgment or decree in a proceeding not instituted for the express purpose of annulling, correcting or modifying such judgment or decree." Kapiolani Estate v. Atcherly, 14 Haw. 651, 661 (1903) (citations and internal quotation marks omitted). The ICA has observed that "the collateral attack doctrine is implicated when an independent suit seeks to impeach a judgment entered in a prior suit." Smallwood v. City and Ctv. of Honolulu, 118 Hawai'i 139, 150, 185 P.3d 887, 898 (App. 2008). This court has similarly stated that" [a] ppellate courts in Hawai'i have typically only applied the collateral attack doctrine in situations in which a second lawsuit has been initiated challenging a judgment or order obtained from a prior, final proceeding." In re Thomas H. Gentry Revocable Tr., 138 Hawai'i 158, 169 n.5, 378 P.3d 874, 885 n.5 (2016) (citation omitted).

The party asserting that an action constitutes an impermissible collateral attack on a judgment must establish that: (1) a party in the present action seeks to avoid, defeat, evade, or deny the force and effect of the prior final judgment, order, or decree in some manner other than a direct post-judgment motion, writ, or appeal; (2) the present action has an independent purpose and contemplates some other relief or result than the prior adjudication; (3) there was a final judgment on the merits in the prior adjudication; and (4) the party against whom the collateral attack doctrine is raised was a party or is in privity with a party in the prior action.

Smallwood, 118 Hawai'i at 150, 185 P.3d at 898.

         As set forth below, LOL's appeal is a direct attack of the PUC's 2017 D&O, not a collateral attack on the PUC's 2012 D&O.

         The first Smallwood element requires a showing that "a party in the present action seeks to avoid, defeat, evade, or deny the force and effect of the prior final judgment, order, or decree in some manner other than a direct post-judgment motion, writ, or appeal." 118 Hawai'i at 150, 185 P.3d at 898 (emphases added). "If an appeal is taken from a judgment, . . . the attack is obviously direct, the sole object of the proceeding being to deny and disprove the apparent validity of the judgment." Kapiolani Estate, 14 Haw. at 661. Rather than attacking the validity of the PUC's 2012 D&O, LOL's appeal was instituted for the express purpose of denying the force and effect the PUC s 2017 D&O. Thus, the first Smallwood element is not satisfied and LOL's appeal cannot be construed as a collateral attack. See Kapiolani Estate, 14 Haw. at 661 ("A collateral attack is an attempt to impeach a judgment or decree in a proceeding not instituted for the express purpose of annulling, correcting or modifying such judgment or decree.") (emphasis added).

         Hu Honua and HELCO argue that, even if LOL's challenge appears to be a direct appeal of the PUC's 2017 D&O, it functions as a collateral attack on the PUC's 2012 D&O. Hu Honua and HELCO contend that the primary purpose of LOL's appeal is to force the PUC to consider the effect of the State's reliance on fossil fuels on GHG emissions and climate change. However, they argue, consideration of GHGs was not within the scope of the PUC s final statement of issues in the 2017 Docket. According to Hu Honua and HELCO, the 2017 Docket only involved increasing the term of the Original PPA and revisions to the contract price and milestone events, which do not directly relate to the effect of the State's reliance on fossil fuels on GHG emissions or climate change. Hu Honua and HELCO therefore contend that, to the extent the PUC was required to consider the effect of the State's reliance on fossil fuels on GHG emissions and climate change, "it did so only in the 2012 Docket." Because LOL failed to directly and timely challenge the 2012 D&O, Hu Honua and HELCO argue that LOL's appeal is an improper and untimely attempt to raise the PUC's failure to address GHGs in the 2012 D&O.

         As discussed further infra, a majority of this court recently determined that "HRS § 269-6 (b)'s requirement to reduce reliance on fossil fuels and to consider [GHG] emissions applies to the fulfillment of all of the [PUC's] duties." In re Application of Maui Elec. Co. (MECO), 141 Hawai'i 249, 263, 408 P.3d 1, 15 (2017) (citing HRS § 269-6(b)). LOL was entitled to appeal the PUC's 2017 D&O due to the PUC's alleged failure to perform statutory and constitutional duties. Hu Honua and HELCO's argument that the collateral attack doctrine precludes this court from exercising appellate jurisdiction over LOL's appeal because the PUC s consideration of GHGs was outside the scope of the 2017 Docket is therefore without merit. Accordingly, this court's appellate jurisdiction is not precluded by the collateral attack doctrine.

         2. Contested Case

         PUC decisions are appealable to this court pursuant to HRS § 269-15.51, ...


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