Ililani Media | August 28, 2021
By Henry Curtis
In the last couple of years, developers have hired public relations firms to aggressively submit support letters in ongoing open regulatory proceedings.
Developers have also created loosely affiliated entities to submit letters of support.
Maui Electric Company filed a response to West Maui Preservation Association (WMPA) Information Request No. 18 on May 5, 2021.
Seller has engaged with Skog Rasmussen, LLC (“SR”) to assist in working with the local community. In addition to SR’s work on the subject Project, the SR team has experience with the Paeahu Solar project, the extensive community outreach with JumpStart Hawaii, the MPower Maui process and other initiatives.
Additionally, Seller, through its Paeahu Project on Maui and its Hale Kuawehi project on the Big Island, has already identified established contacts and developed extensive relationships with local stakeholders and has incorporated changes to the design of their projects based on community input.
West Maui Preservation Association (WMPA) filed a Motion to Strike the Public Letters on August 23, 2021.
Skog Rasmussen LLC was founded in January 2019.
Jeanne Skog served on the Maui Economic Development Board (MEDB) for 33 years including as its President & CEO.
Teena Rasmussen served for eight years as the Director of the Maui County Office of Economic Development. She also served on the board of the University of Hawaii Board of Regents and the Agribusiness Development Corporation.
Skog Rasmussen has a long list of clients including DBEDT, Hitachi Advanced Clean Energy Corporation (Japan), Innergex (Canada), Longroad Energy (Boston), Potentia Renewables Inc. (Canada), SB Energy Corp. (Japan)
Skog Rasmussen sent letters of support to the PUC on behalf of Innergex`s Kahana Solar project, docket no. 2020-0142. One letter opened, “Aloha Commissioners Griffin, Potter and Asuncion”.
Life of the Land has discouraged the filing of comments in contested case proceedings before the Hawai`i Public Utilities Commission.
Life of the Land has generally asserted that comment letters are meaningless. The emails allow the writers to let off steam, but the documents are not part of the official record.
Life of the Land filed a motion in the HELCO-Hu Honua proceeding on August 27, 2021.
Hu Honua employees and executives filed numerous comments with the Commission.
For example, on August 18, 2021, the Commission received comments from Lowen Moses, HHB Shift Supervisor; Ashley McGuire, HHB Electrical Maintenance and Instrumentation Tech; and Raymond Grillot, HHB Operations Contractor who had served as a HELCO System Operator from 1999 to 2008.
On August 4, 2021, the Commission received comments from HHB employee Rilan Ferreira. p.11
Hu Honua sought to lobby the Commission on numerous issues while asserting Life of the Land was confined to discussing the impact of reducing greenhouse gas emissions.
While Hu Honua was erroneously seeking to straitjacket the Commission by insisting that only on very narrow issues remain on the table in the contested case proceeding, Hu Honua employees were busy emailing the Commission asserting that the project made sense when considering firm power, intermediate power, wind energy, solar energy, air pressure, efficiency, diesel generators, system operators, lower rates, shutdowns, brownouts, environmental and safety concerns, eucalyptus, native forest, clear cutting, invasive species, agriculture, the pandemic, jobs, forestry, and ancillary jobs.
HHB asserts that they have the right to bombard the Commission with all of these issues on why the Commission should approve the project, but Life of the Land does not have the right to submit scientific evidence on the same issues subject to rigorous cross-examination.
This appears to violate Article I, section 5 of the State Constitution. “No person shall be  denied the equal protection of the laws.”
The Hawai`i Rules of Practice and Procedure (ROPP) Before the Public Utilities Commission, Hawai`i Administrative Rules (HAR) §16-601-29 state:
Ex parte communications.
(a) No person, whether or not a party to or participant in an agency hearing, shall consult or communicate with any commissioner or hearings officer or any member of the commission staff on any issue of fact in a contested case proceeding before the commission, except as otherwise authorized in this section or by law.
(b) All written and oral ex parte communications received by any commissioner or hearings officer, containing facts or contentions in a contested case proceeding, which may affect the decision in the proceeding and which are known or believed to be unauthorized at the time of receipt, shall be immediately sent to all interested parties to the proceeding and made an official part of the record.
Ex Parte rules vary from state to state.
California defines ex parte and communications.
An ex parte communication is a written or oral communication between a decisionmaker and an interested person concerning any issue in a formal proceeding, other than procedural matters that does not occur in a public forum established in the proceeding or on the record of the proceeding.
Ex parte communications include communications that are one-way from a decisionmaker to an interested person.
The rules governing ex parte communication generally depend on the category of the proceeding. … Ex parte communications are prohibited in adjudicatory proceedings.
The commission shall permit written comments received from the public to be included in the record of its proceedings, but the comments shall not be treated as evidence. The commission shall provide parties to the proceeding a reasonable opportunity to respond to any public comments included in the record of proceedings
California Code, Public Utilities Code – PUC § 1701.1 defines an interested person as an applicant, an agent or an employee of the applicant, or a person receiving consideration for representing the applicant; any person with a financial interest; and any representative acting on behalf of any civic, environmental, neighborhood, business, labor, trade, or similar organization who intends to influence the decision of a commission member on a matter before the commission.
New York State`s Moreland Commission issued a report in 2013.
Since ex parte communications enable one party to influence a decision-maker off-the-record and outside the presence of the other interested parties, it effectively skirts procedural due process. Ex parte communications have the effect of undermining the indispensable fairness and unbiased attributes of decision-makers in judicial and administrative proceedings.
The Commission questions the fairness of allowing one side with virtually unlimited resources total access, while the other side lacks a similar voice.
Based on the Commission’s research, the only two states that currently lack a statutory framework construct to control and manage ex parte communications concerning utility regulation are New York and Massachusetts.
New York, in fact, through statute specifically exempts the application of any ex parte rules as they relate to public utility commissions.
New Hampshire regulations state, “Parties and their representatives should never attempt to contact the Commissioners directly, whether by telephone, electronically or in writing.”
Colorado regulations state, “Ex parte communications concerning any disputed substantive or procedural issue, or facts or allegations at issue, are strictly prohibited.”
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