End of 2016 Legislative Session
SB2267, a good permitting bill that preserved the high water mark of past regulatory efforts, died when Hilo Sen. Lorraine Inouye refused to schedule it for a hearing -- instead, she promoted SB2535, a bad preemption bill to retroactively preempt (eliminate) county ordinances -- and it died in a conference committee on April 29th.
History of Geothermal Legislation in Hawai`i
Hawai`i's geothermal permitting laws originated in Act 296 of 1983. The initial laws were amended from time to time in subsequent years before they were repealed by 2012's Act 97.
1983's Act 296 had a permitting procedure that provided for a contested case to work out the details, and its framework included geothermal resource subzones – that is, zoning areas where geological measurements indicated a potential for geothermal resources.
The procedure for designating geothermal resource subzones defined by Act 296 in 1983 included scientific study plus environmental and cultural concerns – standards required for geothermal resource subzone designation augmented the simple permitting process.
Later amendments added several standards that applied to permit applications but substituted non-binding mediation for contested cases. The latter step was contentious, causing concerned citizens to feel deprived of opportunities to legally participate in considering Geothermal Resource Permit (GRP) applications.
Those supporting Act 97 argued geological measuring science has improved to the point where former geothermal subzone boundaries are obsolete – in other words, scientists say they can look farther now for hot rocks that may yield geothermal energy and so potential development should not be limited to the specific former subzone areas. That new type of exploration has been proposed for the Hualalai area of West Hawai`i.
After repeal of the permitting laws in 2012, legislative attempts were made in 2013 and 2014 to restore the former procedures. Contentions emerged on two primary points: (1) the issue of geothermal resource subzones and (2) the issue of allowing contested cases. Legislation proposed in 2013 and 2014 died in committees due to those controversies.
Attorney General Opinion 14-1 of 2014, titled Management and Disposition of Geothermal Resources on DHHL Lands, concluded, in relevant part, that the Department of Hawaiian Home Lands (DHHL) is entitled to manage and dispose of geothermal resources on its lands, but also recommended having the Board of Land and Natural Resources assist DHHL with technical aspects of geothermal resource management. That opinion should be recognized in proposing a new law.