HONOLULU – Puna Pono Alliance President Robert Petricci made the trip to Oahu to testify on Senate Bill 2535 relating to Geothermal Resources Exploration and Drilling.
The language of the bill will allow counties to “adopt ordinances to regulate geothermal resources exploration conducted less than one mile from a residence if the ordinance is not inconsistent with state law”, but also “prohibits counties from adopting ordinances to regulate geothermal resources exploration conducted one mile or more from a residence.” The bill also clarifies that geothermal regulation falls under state jurisdiction, and that all geothermal producers must to comply with all water and air pollution control laws, relating to building, grading, and flood control codes. Most importantly, Petricci points out, the bill would be effective retroactive to December 4, 2012.
On February 16 the proposed bill had a joint senate committee hearing before the Senate Committee On Transportation And Energy, the Committee On Public Safety, Intergovernmental, And Military Affairs, and the Committee On Water, Land, and Agriculture. Petricci offered written testimony explaining the position of the Puna Pono Alliance, which opposed geothermal development in the Puna district. The group is suing the Pohoiki-based Puna Geotherma Venture over a number of matters.
Opposition to SB2535 is necessary for several reasons: first, it is a preemption bill that proposes to deprive counties of their right to enact geothermal laws; second, as a legislative act it would plainly interfere with ongoing litigation in the Third Circuit Court; and third, as such, it is an attempt to enact special legislation for the benefit of Puna Geothermal Venture (PGV), the only geothermal producer in the State of Hawai’i.
SB2535 would grossly expand the concept of preemption by saying “the absence of state law shall be interpreted to mean that the power to regulate geothermal resources development and geothermal resources exploration, as those terms are defined in section 182-1, has been reserved to the State.” Preemption law usually is concerned with the existence of federal or state statutes that comprehensively occupy a field, thus preempting lower jurisdictions from entering that field. SB2535 simply declares geothermal in general is a topic for state control.
County government is more closely connected to and accessible by the people, and therefore may be more accountable. Local communities are sources of innovation and catalysts for statewide change. However, the ability of local governments to pass laws that protect the health, safety and welfare of their constituents has been increasingly attacked nationwide in recent years by special interest groups. In those legitimate areas of local concern, the Counties of Hawai’i should be allowed to build upon and improve minimum standards set by the State, reflecting their communities’ unique character and needs – one size does not fit all. In recent years, Hawai’i County has enacted two geothermal related ordinances after hearing extensive public testimony on the factual need for those laws.
The pending Third Circuit Court case, Puna Pono Alliance, et al. vs. Puna Geothermal Venture, et al. , Civil No. 15-1-0034, was filed a year ago to challenge the disregard of Hawai’i County Code (HCC) §§ 14-113 and 114. In 2012, PGV’s drilling of a well was so disturbing to its neighbors that complaints led the Hawai’i County Council to pass Bill 292, signed by Mayor Kenoi as Ordinance 12-151 on December 5, 2012, and codified as HCC§§ 14-113 and 114- it provides, in relevant part: “drilling operations being conducted one mile or less from a residence, shall be restricted to the operating hours of 7:00 a.m. – 7:00 p.m.” PGV later began work on a new well twenty-four hours a day, disregarding the County law. Litigation of the validity of the County’s night drilling ban is ongoing after PGV lost a motion to dismiss the suit based in part on an argument that state law preempts county authority to limit night drilling.
SB2535 proposes preempting county geothermal ordinances retroactively to December 4, 2012, the day before the Hawai’i County night drilling ban was enacted- an obvious attempt to create a special benefit that would affect the ongoing Circuit Court litigation against PGV.
The geothermal legislation needed today is not political favoritism for a geothermal site or preemption of County laws. Instead, we need a reasonable and comprehensive state scheme of regulation, such as is set forth in SB2267, that is complemented by County laws. For those reasons, we oppose SB2535.
Robert Petricci, President
Puna Pono Alliance
During the meeting, an amendment to the bill was brought forward. SB2535 SD1 has not been posted to the state legislature website, as of this posting. Sen. Laura Thielen said during the hearing that SD1 takes away the county’s ability to regulate (consistent with state law) less than one mile from a residence, unlike the original version of the bill. Puna Pono Alliance later objected, saying the amendment was introduced with a “lack of required 72 hour notice prior to” the hearing.
“SD1 has not been posted on the website relied upon by the public to see the content of bills being heard,” Petricci argued in an email sent to lawmakers. “SD1 was not mentioned in the public notice of the hearing. Therefore, the bill considered at the hearing, SD1, was not the bill that the public was notified to comment upon.”
“Your committees are being asked to pass special legislation to support PGV’s argument in litigation by eliminating county authority to play its appropriate role in local geothermal issues,” Petricci wrote. “The substance of that proposed legislation is constitutionally flawed, its premise is to give an economic benefit to PGV, the procedure for the first hearing was irremediably harmed by lack of 72 hour notice of the content of the bill considered at the hearing – and the sum of these facts is that the bill should not be recommended.”
The highlights of the hearing – live streamed by the State Senate – are presented below.