Circuit Judge Gary Chang on Tuesday halted a solar advocacy group’s lawsuit against the state Public Utilities Commission, which the group filed after it objected to how the PUC ended a popular solar incentive program.
Chang dismissed a major component of The Alliance for Solar Choice LLP’s lawsuit against Gov. David Ige and the state PUC regarding the state agency’s decision to cut net energy metering, or NEM, a solar incentive program that credits residents for the excess energy their systems send to the grid.
The group said the PUC’s decision on Oct. 12 exceeded the agency’s statutory authority, violated state and federal law, and violated constitutional due process requirements. The judge ruled against a major pillar of TASC’s complaint that said the PUC was participating in rule-making when it created the order that ended NEM. The solar advocacy group said the PUC did not follow the proper administrative procedure of rule-making when ending NEM, which includes giving at least 30 days’ notice for a public hearing. The proper procedure for rule making is written in Chapter 91 of the Hawaii Revised Statutes.
“The PUC is not required by Chapter 91 to engage in rule-making,” Chang said. “This court concludes there was no abuse of discretion in the PUC’s decision to proceed by way of order rather than rule-making.”
The PUC’s order said new solar customers applying for their systems after Oct. 12 on Oahu will be credited a set 15.07 cents per kilowatt-hour on their monthly bills for excess energy they send to the grid compared with the previous program that offered the retail rate, which was 24.2 cents per kilowatt-hour on Oahu in December. In addition to the reduced credit for solar fed into the grid, new residential PV system owners also will pay a $25 minimum monthly bill, up from $17.
Robert Harris, spokesman for TASC, said the group will appeal.
“This is the first step of many. We feel confident that the appellate court is going to agree,” Harris said.
The Delaware-based advocacy group represents the rooftop solar industry in the United States and is responsible for more than 10,000 residential, school, government and commercial installations in Hawaii.
David Taga, an attorney representing the PUC, said the order ending NEM was about a larger issue relating to the stability of the grid.
Taga said the high amount of renewable resources, like rooftop solar, connected to the grid would cause problems with grid stability and safety.
“You are rolling the dice. … that scenario is real,” Taga said. “We don’t want the grid to go down. We don’t want to go dark.”
In his closing statements, Chang said he was worried about the representation of consumers in the process.
“The court’s concern is for the consumers and I am not convinced that consumers were well represented in the proceedings before the PUC thus far. I think it can be improved,” Chang said.
