 We're back, we're live, we're really live, I'll tell you the truth. Mina Merida and I were at the Clean Energy Day Conference 2017 over in Lanier Kaya, just walked back to, scampered back to the studio and get together with Marco. Welcome, Mina, thanks for doing this. Thanks, Jay. That was a quick walk. It was. You're a good walker. And Marco, thank you for joining us a little late today but we're determined to do this show. Well, Nihao from Beautiful Helo, my friends, and great to be back with you on this Aloha Monday. Absolutely. Well, let's first talk about the Clean Energy Day Conference going on in Lanier Kaya. They're having lunch now, but we can talk about what happened in the morning. What happened in the morning, Mina? Well, I think it started off with kind of an update from all the different state county agencies that work on transportation issues. So it was a nice recap of what they're doing and what's going on and how they measure their progress. Yeah, I had the sense from them that there really is something going on. It's not, you know, for a long time it was talk, but it's not so much talk. They're actually got programs, lots of programs that they're putting lots of time and they're hiring people to do it and it's getting done. I mean, there's actually a change happening under our feet. Yeah. One of the most exciting things is the change of mindset that transportation is no longer just focusing on cars, but multimodal situations, you know, safe, complete streets so people can walk, bike, or even take mass transportation more conveniently as well as having the options of a vehicle. So, you know, that whole movement into more of a multimodal solutions and more choices for Hawaii's residents. Yeah, yeah, something is happening. It's a good thing and we have a sort of a new normal where everybody takes the basic idea of complete streets and bikes and multimodal, take it for granted. That's already pretty much accepted around the community and that's a change. We are moving forward. Who is your favorite speaker if you can think of one? Oh, I'm biased to Kauai, so I thought Lee Steinmetz with updates on Kauai and it is exciting when you see the transformation on the streets, the bikeway, the sidewalks, the access to public transportation, and the beautification of streets, so that's really exciting on Kauai. Yeah. And the governor spoke. Any thoughts about that? He needs to give a more complete vision of Hawaii's clean energy future. That's my suggestion to him. Yeah, yeah. And then we had awards. Do you have any favorite awards that were given out that you want to think about? Right here. Well, these awards, then. Yeah, Think Tech got an award for the media section and yeah, thanks to you, you know. No, it's all because you show up, but he shows me that YouTube Marko. Great. Yeah, so we got an award, I'm going to read it to you. It's here on the table and I'll show it to you first. There it is. We got an award just now. Okay, well, let me show it to camera Vivian. Good. There you go. Okay, I'm putting it on the table. And well-deserved because, you know, there's a lot of education involved of the general public and this is one medium that has been consistent in getting information about energy issues and discussion on energy issues. Thank you, Jay. Thank you, Think Tech. Thank you, Marko. Thank you, Hawaii Energy Policy Forum. I mean, this is really a joy for us to do the Clean Energy Day program, the legislative briefing program in January to do these shows with you guys. We see each other, we see ourselves as a platform, a showcase, a facilitator kind of organization to allow people in the energy community to come around and say hi, explain what they're doing, and thus to inform the public and move the needle ahead. And I think that's a role that we like and it has some meaning in the community. So we're going to continue to do that and more. We're going to do more shows, we're going to do more on-location, Neighbor Islands, you know, we did two already, Neighbor Islands, you know, you were there in Kauai. We're going to do more on Maui, Big Island, we're going to get around in the coming months and years. Anyway, that was very nice and I certainly thank the Energy Policy Forum and I thank our staff and I thank our hosts and our underwriters, it's really wonderful to have the kind of support that makes this happen. But let's move on, let's move on to the agenda of what's going on because, you know, for example, I sent in a letter supporting Jay Griffin and there's a hearing going on right now in a ledge. No, tomorrow. Tomorrow. Pardon me. What's that about, Mark? I want to talk about that. Well, first I wanted to congratulate you and your great staff there, Jay, for doing the great job you have as far as furthering the education process and on energy issues I really mean that very sincerely so again, that says great news that you and the whole staff there are recognized for that. So, yes, we have a special session in the ledge that has started, I believe, today ostensibly to tackle the seemingly Gordian knot of the rail project there on Wahoo, which remains to be seen and we'll see by the end of the week as far as a bill makes it to the House and the Senate for the rail project, but since it's the next legislative session, I believe, according to state law or statute, all interim appointments essentially either have to be considered during the legislative session or the interim appointee or appointee's no longer serving that capacity. So, you have Dr. Jay Griffin, who was nominated by the governor to be the third member of the Commission after Tom Korak left and he will be getting a hearing before Senator Rosbaker's committee on consumer protection tomorrow afternoon if I'm not mistaken, so that will be the chance for that committee to hear testimony and then take a vote and then assuming he were to get a majority would be passed on to the Senate at large or at large and then the Senate would have until the end of the week to vote up or down by a minimum of 13 out of 25 and I expect that Jay is going to get a lot better than just the bare minimum to become a full commissioner, so to speak, and no longer have that interim title. Well, what would you say to the Senate committee right now? I mean, you have your opportunity because I know they're all watching. Well, like you, Jay, I'll send some testimony into the committee over the weekend and I think Jay was a superb choice by Governor E. Gaye and great to see someone who has the type of breadth and depth and knowledge and intelligence that the Jay does and of course Mina has worked with Jay closely over an extended period of time, so I just think it was a home run in terms of the governor's choice to get somebody who has talented as Jay Griffin to be sharing the commission, so to speak, with Chairman Randy Oase and Lorena Keeba. Mina, what are your thoughts? I submitted my testimony in support of Jay. The issue that I had which resulted in a lawsuit that I filed which is going to be heard by the Supreme Court in December dealt with the process. So both Tom Gorek and Jay Griffin are highly qualified, but the process that was used by the governor was flawed because I feel the law was quite clear that Michael Champley stays on as a holdover commissioner until his successor is confirmed by the Senate and that did not happen. So I think one of the things that's good with the Senate taking up the nomination during the special session is it will put an end to the uncertainty of Dr. Griffin. Everybody knows that, but it's Dr. Griffin. So it will remove that cloud by the Senate acting on hopefully favorably on this confirmation. Yeah, that would be good. So speaking of the legislature, the special session was not necessarily called for that, it was called for rail. And we had some hot copy from Kalani English this morning. Did you get what he said? Yeah, he said basically disregard Senate Bill 1 and focus on Senate Bill 4 because Senate Bill 1 title was flawed, determined flawed by the attorney general, so they had to insert the bill with inserted into a new bill with a proper title on that Senate Bill 4. I was sort of interesting, he said the title was flawed and that might make the bill unconstitutional and it's too broad, very interesting. Oh no, they had to find a title that would fit the broadness of the bill I guess. Okay, got it. So what does that mean in terms of result on rail? It gets funded, yeah? Yeah, and some people say at the expense of the neighbor islands. So I think it's going to be really interesting because I think what you're going to see is a divide between Oahu and the neighbor islands. Yeah, we have to follow that. This is relevant to the biggest project the state has ever had. Yeah, and I think you already see the fallout in how people voted in committees and of course they voted on the bill today and so it'll be interesting to kind of look over the votes and see how far it went. Marco, you know about this, you have any thoughts on it? Yeah, I wanted to, before we tackle rail a little bit, I just wanted to ask Mina clarifying question on procedure, which is your suit, Mina, was first held in, or first heard in, was it circuit court or district court and you appealed that decision and did it not have to go through the intermediate court of appeals? It just went right to the, we'll go right to the Supreme Court. Okay, so it was an intermediate court of appeals and fully briefed and we made a request for the Supreme Court to hear it because of the significance of what's to be considered. Sure, it's a big issue. Yeah, and one is defining what a vacancy is, the balance of power between the Senate and the administration, the constitutionality of the statue which, you know, the PUC has a statue in place saying that the commissioner whose term ends remains as a holdover commissioner until his successor is confirmed by the Senate. And the administration didn't quite argue this, but they intimated that the statue was unconstitutional and from what, from my reading is, you know, first of all, the PUC is a creature of the legislature, not the constitution. Yeah. And so, you know, why would this statue be unconstitutional if it's not an agency created by the constitution? So, and then the other thing is this whole process of nomination confirmation by the Senate and appointment, you know, it's incumbent upon the governor to make timely nominations while the legislature is in session. So, because of the broadness of issues being looked at here, I think it's one of the reasons why the Supreme Court accepted it, you know, it's a case of first impression. So, you're bypassing the the Intermediate Court of Appeals? Right, exactly. It was brief for them to get it. Because of the gravity cause essentially and the issues involved with this particular case. Now, this is going to, this is going to oral argument in December. Is that what it is? Yes. Right. Oral arguments are set for December 7th at 8.45 a.m. So, you want to come down and watch? And I guarantee you that ThinkTech will cover it. Okay. Or listen, I sometimes they have oral arguments live. So, they definitely tape oral arguments. Yeah, yeah. Yeah, so. You can put that on our system. Yeah, and just for general edification, you know, like for example, on the Land Use Commission, you have three commissioners that are there as holdovers. You know, so, and again, I think this is a result of the administration not sending down names entirely away. Yeah, yeah. We have to straighten this out. Yeah. Hopefully, they'll be able to do that. Yeah, yeah. So, let's take a short break, you guys. When we come back, I'd like to talk about the suit against the Honua approval. Or, or I think it's a, is it a motion for reconsideration? Motion for reconsideration. The way Henry Curtis described it is he's called lodged in appeal, lodged in appeal. I'm not sure what that means really judicially speaking. Okay, we're going to talk about that when we come back. And we're going to see what the implications are. This is stink tech. This is Mina Marco and me on Monday. We'll be right back. You'll see. We all play a role in keeping our community safe. Every day, we move in and out of each other's busy lives. It's easy to take for granted all the little moments that make up our every day. Some are good, others not so much. But that's life. It's when something doesn't seem quite right. That it's time to pay attention. Because only you know what's not supposed to be in your every day. So protect your every day. If you see something suspicious, say something to local authorities. I'm Helen Dora Hayden, the host of Voice of the Veteran, seen here live every Thursday afternoon at 1 p.m. on Think Tech, Hawaii. As a fellow veteran and veterans advocate with over 23 years experience serving veterans, active duty and family members, I hope to educate everyone on benefits and accessibility services by inviting professionals in the field to appear on the show. In addition, I hope to plan on inviting guest veterans to talk about their concerns and possibly offer solutions. As we navigate and work together through issues, we can all benefit. Please join me every Thursday at 1 p.m. for the Voice of the Veteran. Aloha. Okay, we're definitely back. Planted firmly. Mina Marco and me. Mina, the former chair of the PUC. Marco, the CEO of Provision Solar joins us by Skype from Hilo. And we talk about energy. We have six energy shows. Talked about that this morning altogether. We love this one. It's so intimate. Thank you both for doing it. So anyway, the magic of taking these breaks is that things come up during the breaks, right? And one of the things that came up during the break just as we should discuss is the neighbor island effect, you know, on this rail build that now just passed in the legislature. And the interesting, what do you call it, configuration of votes from the delegation from the big island. Tell us about that, Marco. So we've got a total of 11 reps here, including four senators and seven health reps. Of those 11, all four senators, Josh Green, Kai Cahale, Russell Ruderman, and Senator Lorraine Inouye are all opposed to the current compromise. The interestingly, six of the seven health reps are in favor. So I'm not really sure what makes for the schism between the house reps here and the Senate senators. But I think if this bill is going to not make it to the governor's desk, I think it's most, and this is what other observers have been noting as well, that it's most dicey in the Senate, 25 total senators. So all they would need would be to pick off 13 of them. And four already are saying no. So it'll be interesting to see how the politics play out and the hearings play out and the debate plays out by the end of the week when there's final votes taken. Yeah. Well, I mean, don't count your chickens before they hatch. But I think the reason they're having this special session is they already have the votes. Right. Yeah. They wouldn't have done it in the first place. Yeah. Or yeah, it would have been. But how does Kauai come out on this? You know, I would think that the Senate president coming from Kauai is probably supporting his committee chair on it. And my understanding it went straight to Ways and Means Committee and bypassed the Transportation Committee, which Senator Inouye is the chairman of. So and Kauai only has one senator. So that's what I suspect. On the House side, I'm not sure. We have three representatives on the House side. And I had a conversation with Senator, I'm sorry, Representative Tokioka this morning and he's voting against the bill. But I don't know how Representative Nakamura and Morikawa will vote on it. So it's not over yet anyway, huh? You can have commitments beforehand, but they don't always stick to that. No, you know, it's until they cast the votes, you really don't. But you know, it's, I don't think they would have come this far without an agreement in knowing what somebody did the vote count already. Yeah. Well, whatever happens on that, we're still pretty confident about Jay Griffin anyway. Again, you know, I'm not sure, you know, I, you know, with Tom Gorak, you really didn't know until the vote was taken on the floor. That's true, yeah. That was a big surprise there, wasn't it? Yeah. Everybody was surprised. Yeah, and there's a big difference here too, I think, you know. Given that Tom Gorak was chief counsel at the time, you know, they removed Commissioner Champley from the position. Yeah. I mean, again, this is me personally. He had an obligation to really uphold the institution and his role as a government lawyer. So it was a real sort of crossing the line in his particular position. Was this going to be in your book? I'm not writing a second book. One was done and that's it. Well, I'm going to predict, ladies and gentlemen, I'm going to predict that Jay Griffin gets 25 to nothing. I believe he's going to be unanimity in the Senate in terms of approving his position there. What will they say from your lips to God's ears, yeah? Well, you know, again, I think, you know, there's no doubt that this is somebody who's highly qualified. You know, and it's just the nomination appointment process that's muddled right now. Yeah. Okay, let's move on to the thing we promised to get to and that is this lawsuit by Life of the Land against Huo Honua. So, Marco, I want to take a lead on that. What happened in Huo Honua and what is Henry Curtis upset about? So Huo Honua has been a biomass project that's been in the works now for a number of years, replacing the old coal-fired power plant in Pepe Keo here of the Hamakua Coast. And they help assign the deal with Huo Honua, a mainland-based company, to revivify the power plant there, not using coal but using biomass and eucalyptus trees that grows along the Hamakua Coast. And that PPA was approved by the commission. The deal was moving forward, but Huo Honua did not. So it was not able to meet a number of milestones that were required by contract. And the deal was canceled by Helco, which led to a lawsuit filed in federal court that Huo Honua filed against Heco and against Nextera and perhaps others as well. And that essentially brought Heco, Heco Helco, and Huo Honua back to the negotiating table. They worked out a new power purchase agreement which reduced the power purchase agreement price from 28 plus cents a kilowatt hour under the first deal to 22 cents a kilowatt hour under the current deal. And they extended the original contract term with 20 years and the new one is 30 years. So that was approved not too long ago by the commission, all three commissioners, including Dr. Griffin. And Henry Curtis and Life of the Land were a so-called participant on this particular docket, not an intervener but a participant. And Henry announced over the weekend that Life of the Land, his organization, had lodged an appeal to the Hawaii Supreme Court to reverse the PUC's ruling in favor of the Huo Honua project going forward. In other words, he was challenging that approval. And based on, according to Henry, that it did not take into account the greenhouse gases that were going to be emanating for decades to come and moves forward. And they started burning biomass. And that was a gross negligent thing to do according to Henry. So it kind of brings up interesting question as to what his standing will be found to be. And it's been my understanding, and I would like to hear me in this position on this, that to overturn a commission decision in court is virtually impossible. I don't know of any precedents over the past decades where a lawsuit has been successful in terms of overturning a commission decision. So I think Henry has a very, very high bar to clear on that. But I think his point is an interesting one in terms of, according to him, the commission not taking into account the effect of climate change or the overall issue of climate change and the fact that this would be a combustion power plant where you're burning something and the burning something puts crap into the air. So that's what's going on now. There won't remain to be seen again whether the Supreme Court allows the life of the land to have any standing. And if they find that Henry and his group have no standing, then the appeal doesn't go anywhere. At least that's, as I understand it, is a non-lawyer. Well, you've done it, you know. You've really gotten Mina excited. I can see she's bursting to comment. Mina, what would you add to that? Well, I think, you know, as a participant, I'm not too sure about how the rules read that something that needs to be looked at that, you know, you would have to go through a motion to reconsider before, you have to exhaust all your remedies before the administrative agency so you can appeal to the Supreme Court. So I'm questioning that, and I'm sorry, it's an appeal to the Intermediate Court of Appeals. And as Marco has used that, you know, it's really hard to... Usually the ICA will not second-guess the administrative agency because there was something procedurally wrong. Right, it's a procedural thing. They're not going to... They usually don't deal on substance. And then, you know, then there's the question on, you know, how responsible is the PUC for policy issues like greenhouse gas emissions? And in particular, on, you know, one source, you know, where there might be an increase in greenhouse gases from this particular PPA. I mean, you know, there's tons of other PPAs that are non-emitting that have been approved by the PUC, so is that a balance? What do you think? I mean, should the PUC get involved in this policy and make a policy and say we're not going to take anything that's fossil? Well, I think it should be part of its decision forward and especially meeting renewable portfolio standard goals, but it's not the sole issue to be looking at as they move forward. That's true, it makes it complex that you have to look at all the issues. Yeah, and I think, you know, there's a greater case on economic issues on whether this PPA is a good deal for the rate pair because from the original PPA that was approved when I was chair, the risk was on the developer at that time. This PPA, all the risk is on the rate pair. And the rate pair will pay. Yeah, and while, you know, there may be a reduction in the kilowatt hour price, I mean, one of the things that stood out to me is the capacity charges. You know, the capacity charges went from around 4,000 in the old PPA to some over $50,000 a month. It's a capacity charge. What the utility pays to have it have it operating. Yeah, yeah, yeah. We're almost out of time, you guys. I have a question, Nina, which is, Ken, do you know whether a so-called participant on a docket as life of the land was on Huonoa, whether a participant can file something to ask the commission to reconsider their decision? If that's a preliminary step, I mean, can they do that? I would think that would be the preliminary step, whether you're a participant or an intervener, but again, I'm not up on the rules on that. And I think that would have to happen. You exhaust all your remedies within the agency before you can go to the ICA. Yeah. So we're going to have to see how this plays out. We're going to verify what's going on and who's got it and, you know, how it got there. Yeah. Yeah. And we do that next time. And next time we'll also do a discussion of the inclinations paper and see how that's unfolding too, given all the things that are happening by Hawaiian Electric and in all these various initiatives. There seems to be more happening now, don't you think? There was always a lot happening. Yeah. But now it's just, you know, again, how do you pull all the different pieces together? Yeah. Well, we try. Yeah. Marco, why don't you say goodbye to everybody? Goodbye to everybody. I want more. Have a holly jolly rest of your Monday, dear Mina Enche. Thank you, Marco. Thank you, Marco. Thank you, Mina. Thank you both. We'll see you again in two weeks or sooner. Yeah. Goodbye.